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OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


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AMERICAN 


INTER-STATE  LAW. 


< 


BY 


DAVID  RORER, 

111  ' 


Ml 

OP  THE  IOWA  BAB.      AUTHOR  OP  "BOREB  ON  JUDICIAL  AND  BXBOUTIOH  SALES. 


Edited  by  LEVY  MAYER, 

07  THE  CHICAOO  BAB. 


CHICAGO: 

CALLAGHAN  AND  COMPANY. 

1879. 


Entered  according  to  Act  of  Congress,  in  the  year  1879, 

IJy  DAVID  RORER, 

In  the  Office  of  the  Librarian  of  Congress,  at  Washington,  D.  C. 


IlAZLITT  &  BBED, 

rniNTERs, 
ITS  and  174  Clark  St. 


Mabdek.  Luse  &  Co., 

STEREOTTPEUS. 

189  aud  141  Monroe  St. 


V 


TABLE  OF  CONTENTS. 


CHAPTER  I. 
Introduction 1 

CHAPTER  11. 

Comity  —  Natural  Riglit  —  Law  of  Wations  and  Universal 
Law 4 

CHAPTER  Iir. 

CORRELATION    OF    GOVERNMENT  —  CITIZENSHIP    AND    ALLEGIANCE 

SUABILITY    OF    STATES. 

I.     State  and  National  Sovereignty.     Duality  and  Unity 

of  Government 9 

II.     Citizenship  and  allegiance 19 

III.  Suits  between  two  or  more  States 20 

IV.  Suit  against  a  State  by  a  Citizen  of  another  State ...   21 

CHAPTER  lY. 

INTER-STATE   RIGHT   OF    SUIT — JURISDICTIONAL   REQUISITES. 

I.  A  Constitutional  Right,  as  well  as  by  Comity 22 

11.  Personal  Jurisdfiction:  When  Necessary 22 

III.  Proceedings  in  rem 23 

IV.  Sealed  and  Unsealed  Instruments 24 

V.  Non-Residents    Personally    Suable    if  Found    and 

Served 25 

VI.     Jurisdiction  Obtained  by  Fraud 26 

(iii) 


6874.qfi 


IV  CONTENTS. 

VII.     Foreign  Corporations,  Executors  and  Administrators.  26 
VIII.     Service  on  a  Member  of  a  Firm,  as  against  a  Non- 
Resident  Member  thereof 27 

CHAPTER  V. 

OONODBRENT   CIVIL    JDRI8DI0TION,    STATE    AND    NATIONAL. 

I.    Extent  Thereof 28 

II.     Suit  in  Name  of  Legal  Owner  in  United  States  Circuit 

Court .29 

III.  Citizenship  and  Proof  of  Value  in   Controversy  in 

United  States  Courts 30 

IV.  Decisions  of  National  Courts 31 

V.     Jurisdiction  of  two  or  more  Districts  in  one  State. ...   31 

VI.    Jurisdiction  in  Naturalization  Proceedings 32 

CHAPTER  VI. 

CXDMMON  LAW,  CIVIL  LAW   AND  LAW  OF  STATE  AND  NATIONAL  COUETS. 

I.  The  Common  Law  and  Civil  Law  as  State  Laws 33 

II.  United  States  Courts  Administer  State  Laws 34 

III.  But  not  as  to  Forms  of  Process,  unless  Adopted 35 

IV.  Processes  of  State  Courts  may  be  Adopted 36 

V.  Rulings  of  State  Courts:  When  Followed 36 

VI.    National  Powers  and  Jurisdiction  of  Courts  not  Af- 
fected by  State  Laws 37 

CHAPTER  VII. 

JNTER-fflATE   EQUITY   JURISDICTION   AND   PEACTIOE. 

I.     Concurrent  State  and  National  Equity  Jurisdiction. . .   39 
II.     Equity  Practice  and  Rules  in  United  States  Courts  ...   40 

III.  Jurisdiction  in  United  States  Courts  of  Executors  and 

Administrators 41 

IV.  Enjoining  judgment  of  United  States  Court  in  same 

Court 42 

V.     State  Court  may  act  by  Injunction  on  Person  of  Defend- 
ant to  Prevent  Suit  in  another  State 42 


CONTENTS.  V 

CHAPTER  YIII. 

INTER-STATE   LAW   OF   CONTRACTS. 

I.     The  Law  of  the  Contract 45 

II.     The  Law  of  Performance 50 

III.     The  Law  of  the  Remedy 52 

lY.     Statutory  Bonds  made  in  State  Proceedings 54 

Y.     Statutory  Bonds  taken  in  National  Proceedings.. . .  56 

Yl.     Rule  of  Damages 58 

YII.     Contracts  made  with  a  Yiew  to  Yiolate  Law  of  an- 
other State 58 

YIIL     Statute  of  Frauds 60 

IX.     Commercial  Paper  and  Endorsement  thereof 60 

X.     Mortgage  Lien 68 

XL     Laborer's  Lien 70 

XII.     Contracts  of  Affreightment 71 

XIII.     Warehouse  Receipts 72 

XIY.     Stoppage  in  transitu 73 

XY.     Inviolability  of  Contracts 75 

XYI.     Usury 80 

CHAPTER  IX. 

RULES    OF    PROPERTY    AND    RIGHT    THE    SAME    IN   STATE   AND 
NATIONAL    COURTS. 

I.     "When   the   Local   Rules   of  Law  are  followed  by 

United  States  Courts 84 

II.     Blind  Conformity  to  State  Rulings  not  Required  of 

United  States  Courts 86 

CHAPTER  X. 

ACTIONS   AND    SUITS    ON   JUDGMENTS   AND    DECREES. 

I.     Actions  on  Judgments  of  other  States 87 

II.     Actions  on  Decrees  of  other  States 92 

III.     Actions  in  State  Court  and  United  States  Court  on 

Judgments  of  Either 94 

lY.     Action  on  Conditional  and  Interlocutory  Judgments.  95 

Y.     Action  on  Joint  Judgment 96 


VI  .  CONTENTS. 

YI.  Action  on  a  Judgment  on  Penal  Bond 97 

VII.  Competency  of  the  Record  as  Evidence 98 

VIII.  Change  of  State  Government 100 

IX.  Judgments  and  Decrees  in  Proceedings  in  rem 100 

X.  Defenses  to  Suits  on  Judgments  and  Decrees 102 

CHAPTER  XL 

INTER-STATK   PBOOF   OF   RECORDS,  JUDICIAL    PROCEEDINGS   AND    LAWS. 

I.     National  Provisions  of  Law  on  the  Subject 110 

II.     Proof  of  Records  and  Judicial  Proceedings  in  Pur- 
suance thereof 113 

III.  Proof  of  Statute  Laws  of  the  State  under  the  Act  of 

Congress 117 

IV.  Proof  of  State  Laws  as  at  Common  Law  and  under 

State  Statutes 119 

V.     Proof  of  Proceedings  of  Justices  of  the  Peace 122 

VI.     Proof  of  Records  of  Office  Books 123 

CHAPTER  XII. 

PROCEEDINGS   BY   FvjREIGN    ATTACHMENT. 

I.    The  Attachment 124 

11.     Process  of  Garnishment 127 

CHAPTER  XIII. 

INTER-STATE   INSOLVENT   DISCHARGE   BY   STATE   COURT. 

I.     The  Court  must  have  Jurisdiction  of  the  Creditor's 

Person 132 

II.     Distribution  of  Insolvent's  Assets 136 

CHAPTER  XIV. 

ACnONS   FOB   TORTS    AND    TRANSITORY   ACTIONS. 

I.     Actions  of  Trespass  vi  et  armis 140 

II.     Actions  of  Trespass  on  the  Case  for  Torts 143 

III.     Abatement  and  Bar  of  Actions 145 


CONTENTS.  Vll 

CHAPTER  Xy. 

PENAL    AND   STATUTORY  ACTIONS  NOT  ENFORCEABLE  IN  OTHER  STATES. 

I.     One  State  cannot  Enforce  the  Statutes  and  Penal 

Laws  of  another 148 

II.  A  State  cannot,  in  Yirtue  of  its  own  Penal  Laws, 
Punish  Acts  Committed  against  the  Laws  of  an- 
other     149 

III.  Statutory  Actions  for  Death  of  a  Person 155 

IV.  Statutory  Remedy  by  Indictment  for  Death  of  a 

Person 164 

Y.     Statutory  Action  for  Penalty  for  Usury 165 

CHAPTER  XYK 

EXTRA   TERRITORIAL    FORCE   OF   LAWS. 

I.     State  Laws  have  no  Extra  Territorial  Force 167 

II.     What  Acts  done  under  them  Abroad  are  Binding  at 

Home 169 

CHAPTER  XYIL 

STATUTES   OF   LIMITATION. 

I.  The  Plea  of  Limitations  goes  to  the  Remedy  Af- 
forded by  the  Law  of  the  Forum 171 

11.     State  Power  to  Limit  Actions  on  Judgments  of  other 

States 173 

III.     The  Statutes  do  not  apply  to  Suit  by  State  or  United 

States 174 

lY.     Statutes   Limiting   Suits   on   Judgments   of  other 

States  Operate  Prospectively 174 

•  Y.     In  some  States  a  Previous  Bar  in  another  is  a  good 

Plea 174 

YI.     Ability  of  a  Corporation  of  another  State  to  Plead 

the  Statute 176 


Viil  CONTENTS. 

CHAPTER  XVIII. 

ICABSIAQE  AND   DIVOKOB  —  INTER-STATE  VAUDITY  THEREOF. 

I.    The  Institution  of  Marriage  and  Inter-State  Valid- 
ity thereof. 177 

II.    Divorce.    Jurisdiction  to  Grant  tlie  Same 179 

III.  Inter-State  Validity  of  Divorce 181 

IV.  Inter-State  Custody  of  Children.     Enforcement  of 

Alimony 183 

V.  Inter-State  Effect  of  Former  Adjudication 185 

CHAPTER  XIX 

INTER-STATE   LEGAL    STATUS   OF    PERSONS. 

I.  Residence  and  Domicile  Defined  and  Distinguished.  186 

II.  Domicile  of  Infants,  Minors  and  Adults 188 

III.  Citizenship 189 

IV.  Legal  Capacity  to  Act 190 

CHAPTER  XX. 

LEGAL   STATUS   AND   JURISDICTION   OF   PERSONAL    PROPERTY   AND 
PERSONAL   INTERESTS. 

I.    The  Legal  Status  follows  the  Owner 194 

II.     Exceptions  to  the  Rule 1 96 

III.  Sales  and  Transfers  Valid  where  Made,  are  Valid 

Elsewhere 197 

IV.  Distribution  of  a  Deceased  Person's  Movables 200 

V.     The  Locality  and  Situs  of  Money  Obligations  and 

Debts. .        202 

VI.  Mortgages  of  Personal  Property 203 

VIL     Subscriptions  to  Capital  Stock 203 

VIIL     Voluntary  Assignments 204 

IX    Where  Personal  Property  is  Taxable 204 


CONTENTS.  IX 

CHAPTEE  XXI. 

LEGAL   STATUS    AND   JUKISDICTION    OF    LANDS. 

I.     Jurisdiction  as  to  Land  is  Local 207 

11.     Title  Passes  only  by  the  Lex  Rei  Sitce 208 

III.     Courts  of  other  States  may  Act  upon  the  Owner's 

Person  to  Coerce  a  Conveyance 211 

lY.     One  State  Owning  Lands  within  another 213 

Y.     Government  Lands 213 

CHAPTEE  XXII. 

CRIMINAL    JURISDICTION. 

I.     Of  the  National  Courts 215 

II.     Of  the  State  Courts 216 

III.     Writ  of  Error  from  United  States  Supreme  Court 

to  S.tate  Court 216 

lY.     Incidents  to  National  Local  Jurisdiction 217 

Y.     Inter-State  Extradition  of  Fugitives  from  Justice..   218 
YI.    .Power  of  one  State  to  Enforce  the  Penal  Laws  of 
another  and  to  Punish  Crimes  Committed  in  an- 
other    227 

YII.     Larceny  at  Common  Law  by  Bringing  Stolen  Prop- 
erty into  a  State 228 

YIII.     Crimes  Committed  Partly  in  one  State  and  Party  in 

another 239 

IX.     Crimes  Committed  in  a  State  without  the  Offender 

being  therein 241 

X.     No  Concurrent  Criminal  Jurisdiction  in  State  and 

National  Courts 244 

CHAPTEE  XXIII. 

THE    POLICE    POWER. 

I.     The  Police  Powder  is  in  the  States 246 

11.     Its  Extent 246 

III.     This  Power  Eemained  in  the  Original  States 247 

lY.     And  by  Parity  of  Eight  is  in  the  New  States 247 


X  CONTENTS. 

CHAPTER  XXIV. 

INTER-STATE    RIGHTS,    POWERS    AND    DUTIES    OF   EXECUTORS,    ADMINIS- 
TRATORS   AND   GUARDIANS. 

I.    Where  Letters  Testamentary  and  of  Administration 

should  be  Granted 248 

II.     The  Powers,  Liabilities  and  Duties  of  Executors 

and  Administrators  are  Local 250 

III.  Inter-State  Actions  by  and  against  Executors  and 

Administrators  on  Foreign  Judgments 257 

IV.  Executors  and  Administrators  Suing  in  their  own 

Right 259 

V.     Non- Residence  and  Removal  from  the  State 261 

VI.     Statutory  Power  to  Act  in  other  States 263 

VII.     Wills;  Probate;  Validity  of.     How  Far  Binding  in 

Courts  of  other  States 264 

VIII.     Guardians  of  Minors  and  Lunatics 266 

IX.     Dower 269 

X.    Jurisdiction  of  National  Courts  in  Matters  of  Pro- 
bate    269 

XI.    Pleadings  in  Inter-State  Suits  in  Probate  Matters. .  272 

CHAPTER  XXV. 

PRIVATE  CORPORATIONS  AND  WORKS  EXISTING  IN  TWO  OR  MORE  STATES. 

I.  Power  to  Sell  Capital  Stock  thereof  on  Execution. .   273 

II.  Power  to  Tax  Mortgage  Debt  thereof  by  the  States.  275 

III.  Liability  to  Suit  for  Common  Law  Cause  of  Action  277 

IV.  Power  of  United  States  Court  as  to  Mortgage  Fore- 

closure and  Sale  of  Property  Situated  in   two 
States 279 

CHAPTER  XXVL 

FOREIGN   PRIVATE   CORPORATIONS. 

I.     Inter-State  Suits  by  and  against  Foreign  Corpora- 
tions    280 

II.     Right  of  a  State  to  Exclude  Corporations  of  other 

States 285 


CONTEI^TS.  XI 

III.  Foreign  Corporations  may  do  Business  in  a  State  if 

not  Prohibited.     Wliat  Law  Governs  their  Con- 
tracts    288 

IV.  Inter-State  Power  to  Hold  Lands 290 

Y.     Inter-State   Snit   against  Stockholders   to  Enforce 

Individual  Liability 290 

YI.     Inter-State  Consolidation  of  Railroad  Corporations.  291 
YII.     Police  Power  over  Foreign  Corporations  in  a  State.  293^ 

CHAFFER  XXYII. 

EECEIVEES,    OTHER   TRUSTEES   AND    TRUST   FUNDS. 

I.     Receivers  of  State  Courts  have  no  Power  in  other 

States 295 

II.     State  Courts  have  no  Power  over  Effects  in  the  hands 

of  a  Receiver  of  United  States  Court 296 

III.     Receivers  of  Different  Courts  cannot  Sue  each  other 

as  Such 296 

lY.     Trust  Funds  will  be  Followed  into  other  States 290 

CHAPTER  XXYIII. 

ADMIRALTY   AND    COMMON   LAW   JURISDICTION  IN  MARITIME  CASES. 

I.     Admiralty  Jurisdiction 301 

II.     Maritime  Liens 304 

III.     Maritime  Torts 305 

lY.     Common  Law  Jurisdiction  of  Maritime  Cases 306 

CHAPTER  XXIX. 

INTER-STATE   COMMERCE. 

I.    The   Term   Commerce.     Power   to   Regule  Inter- 
State  Commerce 300 

II.     Until  Controlled  by  Congress,  it  is  Free   311 

III.  State  Regulation  of  Yessels  Engaged  in  Commerce. 
Tax  of  Commanders,  and  of  Arrivals,  and  of  Inter- 
State  Passengers  by  Land  and  by  Water 314 

lY.  State  Property  Tax  of  Yessels  Engaged  in  Inter- 
State  Commerce 317 


Xll  CONTENTS. 

V.    Pilotage 320 

VI.     Warehousing  and  Elevating 321 

VII.     State  Control  of  Bayous  and  Sloughs  of  Rivers ....   321 

CHAPTER  XXX. 

STATE  TAXATION  OP  NATIONAL  BANKS,  BONDS  AND  OREDFrS. 

I.     State  Taxation  of  National  Banks;  of  Shares  of  Stock 

in  the  Same 322 

II.    State  Tax  on  National  Bonds  and  Credits 324 

CHAPTER  XXXI. 

BANKKUPTCY. 

I.  Effect  on  Jurisdiction  of  State  Court 326 

II.  Fixed  Liens 327 

III.  State  Insolvent  or  Bankrupt  Laws 327 

IV.  State  Insolvent  Laws:    How  Affected  by  National 

Bankrupt  Law 329 

CHAPTER  XXXII. 

WRrr   OF   HABEAS    CORPUS. 

I.    From  a  State  Court 331 

11.     From  a  United  States  Court 332 

III.    The  Return  ot  the  Writ 332 

CHAPTER  XXXIIL 

EIGHT  OP  COMMON  IN  WASTE  PLACES  AND  WATERS,  AND  EIGHT  OP 
EMINENT  DOMAIN. 

I.     In  the  Tide  "Waters  and  Waste  Places 334 

II.     In  the  Navigable  Inland  Rivers  and  Land  There- 
under    334 

III.  Ownership   and   Local   Jurisdiction    of   Boundary 

Waters 335 

IV.  Right  of  Eminent  Domain 335 


CONTENTS.  XUl 

CHAPTEE  XXXIY. 

JUKISDICTION    OVER    STATE    BOUNDAKT    RIVERS. 

I.     Admiralty  Jurisdiction  of  United  States 336 

II.     The  Territorial  State  Boundary  as  to  Things  Per- 
manent     336 

III.     Concurrent  State  Jurisdiction  and  its  Exercise  on 

the  Whole  Iliver,  Except  as  to  Things  Permanent.  337 

CHAPTEE  XXXY. 

POWER  OF  THE  STATES  TO  LICENSE  INTER-STATE  FERRIES. 

I.     The  Power  to  License  is  a  Police  Power 347 

II.  The  Extent  Thereof  and  Effect  of  its  Exercise 348 

CHAPTEE  XXXVI. 

REMOVALS   TO    UNITED    STATES   COURT. 

I.     When  the  Proceeding  is  had  for  Acts  done  under 

Authority  of  the  United  States 352 

11.     Eemovals  under  the  Act  of  Congress  of  March  3d, 

1875 353 

III.     The  Eight  of  Eemoval  cannot  be  Limited  or  Bar- 
gained Away 354 

TV.     Citizenship  can  only  be  Disputed  by  Plea  in  Abate- 
ment     357 

Y.     Citizenship:  How  Stated  by  Corporation  Plaintiff.   357 
YI.     United  States  Court  is  the  Judge  of  the  cause  of 

Eemoval 359 

YII.     Eemoval  by  National  Corporations 360 

CHAPTEE  XXXYII. 

TRANSITION    FROM   TERRITORIAL   TO    STATE   GOVERNMENT. 

I.     Judgments  Eendered  During  Transition  Period  . .  .   361 
II.     Disposition  of  Eecords  of  the  Territorial  Courts  . .    362 

III.  Effect   of   Change  of   Government  on  Territorial 

Debts 363 


TABLE   OF   CASES   CITED 


NAMES  or  OASES.  WHERE  BEPORTED.  WHERK  CITED. 

Ableman  v.  Booth ..21  How.  506 23,  332. 

Ackerson  v.  Erie  R.  K.  Co 2  Vroom,  309 144. 

Adams  v.  Gay 19  Vt.  3.58 50. 

V.  Lisher 3  Blackf.  241  ....112. 

V.  Robertson 37  111.  45 82. 

».  People 1  N.  Y.  173 241,242. 

V.  Way 33  Conn.  419 112. 

Adriance  v.  Lagrave 59  N.  Y.  110 223. 

^tnalns.  Co. -e.  Aldrich 38  Wis.  107 89. 

V.  Harvey ..11  Wis.  394 284. 

Aldrich  v.  Mlna  Ins.  Co 8  Wall.  491 69. 

V.  Kinney 4  Conn.  380..  ...88,  lOG. 

Allen  «.  Atlanta  St.  R.  R.  Co 50  Geo.  503 158. 

V.  Merchants'  Bank 22  Wend.  215 64. 

V.  Newberry 21  How.  245 302. 

».  Williams 12  Pick.  297 72. 

Allison  ».  Nash 16  Tex.  560 172. 

Allshouse  «.  Ramsay 6  Whart.  331 60. 

Almy  t).  California 24  How.  169 310,314. 

Althorft).  Wolfe 22  N.  Y.  355 343. 

Alton  «.  111.  Trans.  Co 12  111.  38 174. 

Ames®.  Hoy 12  Cal.  11 .88. 

Amis®.  Smith 16  Pet.  803 36. 

AndGTsoQ,  Ux  parte 16  Iowa,  595 331,  332. 

Anderson  v.  Drake 14  John.  114 64. 

V.  Wheeler 25  Conn.  603 132,  134,  1.3.5. 

Andrews  v  Herriot 4  Cow.  508 25,  52. 

V.  Mich.  Cent.  R.  R.  Co 90  Mass.  534 281,  282. 

V.  Montgomery 19  John.  162 182. 

».  Pond 13  Pet.  65 46,49,50,  51,60,81. 

Anstedtij.  Sutter..: 30  111.  164 46,47,  48. 

Antelope,  The 10  Wheat  66 4,  227,340. 

Apperson».  Bolton '. 29  Ark.  418 265. 

Applegate®.  Smith  ..  81  Mo.  166 266. 

(XV) 


XVI  CASES    CITED. 

Archer  c.  Dunn 2  W.  &  8.  827. ...68. 

Armory  v.  Armory 6  Otto,  186 859. 

Arms  V.  Conant 86  Vt.  744 289. 

Armstrong  t).  Carson 2  Dal.  302 106, 

e.  Lear 12  Wheat.  169..  .251. 

e.  Toler 11  Wheat.  258  ..  .50,  58. 

Arndt  e.  Arndt 15  Ohio,  33 101,  102. 

Arnold  v.  Potter 22  Iowa,  194 26,  49,  50,  51,  65,  68, 

81,  148. 

V.  Roraback 8  Allen,  429 100. 

Arnott  t).  Webb 1  Dill.  362 107. 

Aspden  fl.  Nixon 4  How.  467 257,258. 

Atkinson  o.  Atkinson 15  La.  Ann.  491  ..202. 

Atwood  V.  Protection  Ins.  Co 14  Conn.  555 204. 

Augustas  Dunbar 50  Geo.  387 205. 

Auldt).  Butcher 2  Kan.  135 174 

Austen  v.  Miller 5McL.  153,  and  13 

How.  218 36. 

Aymarc.  Sheldon 12  Wend.  444 64. 

Ayres  v.  Audubon 2  Hill,  (S.  C.)  601.65. 


B. 

Bagnell  v.  Broderick 13  Pet  436 214. 

Bags  of  Linseed 1  Black,  108 302. 

Bailey  e.  Hudson  Riv.  R.  Co 49  N.  Y.  70 71. 

Baird  v.  Daly 57  N.  Y.  236 303.  307 

Baker  v.  Brown 18  111.  91 172. 

Balch,  Ex  parte 3  McL.  221 146. 

Baldwin  «.  Hale 1  Wall.  223 132,  135,328. 

Balfour*.  Chew 5  Mart.  (n.  s.)  517.112. 

Balme  v.  Wombaugh 38  Barb.  352 81. 

Bait.  &  Ohio  R  R  Co.  v.  Cary 28  Ohio  St.  208  ..355. 

V.  Gallahue 12  Gratt.  655 129. 

V.  Glenn 28  Md.  287 288. 

V.  May 25  Ohio  St.  347  ..129. 

Baltzell  V.  Nosier 1  Iowa,  588 106. 

Banchor  v.  Fisk 83  Maine,  316.. ..134. 

B.  Mansel 47  Maine,  58 198. 

Bank  v.  The  Supemsors 7  Wall.  26 324 

Bank  of  Alabama  c.  Dalton 9  How.  522 

Augusta  V.  Earle 13  Pet.  519 4,  5,  10,  46,  168,  280, 

285.  289. 

Commerce  o.  Corns,  of  Taxe8.2  Black,  620 322,  324 

Edwardsville  v.  Simpson 1  Mo.  184 280. 

Hamilton  v.  Dudley's  Lessee. 2  Pet.  492 87.  85. 

Kentucky  c.  Wister 2  Pet.  318 284. 

Marietta  v.  Pindall 2  Rand.  (Va.)  465.280. 

North  America  v.  Wlieeler...28  Conn.  433 90,  146,  147. 


CASES    CITED.  XVll 

Bank  of  Rochester  v.  Gray 2  Hill,  228 25. 

ij.  Jones 4N.  Y.  497 71. 

U.  S.  e.  Daniel 12  Pet.  32 10,30. 

V.  Donnally 8  Pet.  361 46,  52,  53,  68, 172. 

V.  Halstead .10  Wheat.  51 38. 

V.  Lee 13  Pet  107 198,  199. 

V.  Merchants'    Bank    of 

Baltimore 7  Gill,  430 108. 

V.  Mississippi 12  Sm.  &  M.  456.205. 

V.  Planters'  Bk.  of  Geo.. 9  Wheat.  904 284. 

Washington  v.  Arkansas 20  How.  530 21. 

Bank  Tax  Case 2  Wall.  200 322,  324. 

Banks,  The  v.  The  Mayor 7  Wall.  16 324. 

Banta  v.  Wood 33  Iowa,  469 23,  24, 124. 

Barber  «.  Barber .2  Pinn.  297,  and 

21  How.  582- -.183,  184,  185. 

Barbour  t).  Watts 2A.K.Marsh.290-112. 

Bardent).  Crocker 10  Pick.  383 140. 

Barker  v.  Stacy 25  Miss.  477 68. 

Barnes®.  Gibbs 2  Vroom,  317 147. 

V.  Whitaker 22  III.  606 65,  83, 149, 165. 

Barnett  v.  Chicago,  etc.,  R.  R.  Co 4  Hun,  114,  and  6 

Thomp.&  C.358.282. 

Barney  fl.  Burnstenbinder 64  Barb.  212 104. 

«.  Patterson 6  Harr.  &  J.  182.-18,  94 

Barnum  «.  Barnum 42  Md.  251 190,  191,  209. 

Barron  v.  111.  Cent.  R.  R.  Co 1  Biss.  412 157. 

V.  Mayor,  etc.,  of  Baltimore... 7  Pet.  243 19. 

Barrows  v.  Downs 9  R.  I.  446 34. 

Barry  t).  Eq.  Life  Asso 59  N.  Y.  587 46. 

Barton  «.  Higgins 41  Md.  539 260. 

Batcheldoru.  Batcheldor 14  N.  H,  380 180. 

Bates  V.  Chi.  &  N.  W.  R.  R.  Co 19  Iowa,  260 23,  88,  130. 

V.  New  Orleans,  Jack.  &  G.  W. 

R.  R.  Co 4  Abbott  Pr.  72  ..128. 

®.  Tappan 3  Nat.  Bank.  Reg. 

159,  &  99  Mass. 

376 326,327. 

Batteyt!.  Holbrook 11  Gray,  212 98. 

Baxter  v.  State 9  Wis.  38 363. 

V.  Vincent 6  Vt.  614 128. 

Bayerque®.  Haley 1  McAll.  97 30. 

Beal  V.  State 15  Ind.  378 229. 

Bean  v.  Briggs 4  Iowa,  464 118. 

V.  Smith 2  Mas.  252 39. 

Beauregard  v.  New  Orleans 18  How.  497 34. 

Beckham  v.  Wittkowski 64  N.  C.  464 252. 

Beer».  Hooper 32  Miss.  246 132. 

Beer  Co.  -».  Massachusetts ' 7  Otto,  25- 246. 

Beers  c.  Alabama 20  How.  527 21. 

2 


XVlll  CASES    CITED. 

Beers  t>.  Haughton 9  Pet.  829 88,  40,  76,  79,  80. 

V.  Rhea 5  Tex.  349 132. 

Bein  «.  Heath 12  How.  168 40. 

Belfast,  The 7  Wall.  624 801.802,303,304,305, 

306,  307,  808. 

Bell  c.  Mayor,  etc.,  of  Vicksburg 28  How.  443 85. 

Bennett  «.  Bennett Deady,  299 18, 112. 

Benninghofft).  Oswell 37  How.  Pr.  235.. 222. 

Berthelemy  v.  Johnson 3B.  Mon.  90 178. 

Bcthell  V.  Bethell 54  Ind.  428 47,  211. 

Biddis  V.  James 6  Binn.  821 120. 

Biddle  v.  Wilkins 1  Pet.  686 272. 

Billings  V.  Russell 23  Penn.  St  191.  .92. 

Binghamton  Bridge  Co.,  The 3  Wall.  51 75,  77. 

Birdp.  Hayden 1  Robert  391 98. 

v.  The  Steamboat  Josephine 39  N.  Y.  19 801. 

Birdsey  t).  Butterfleld 84  Wis.  52 122. 

Bischoff  V.  Wethered 9  Wall.  812 23. 

Bishop  «.  Bishop Penn.  St  112 180. 

Bissell  B,  Briggs 9  Mass.  462 88,  108. 

«.  Edwards 5  Day,  263 116. 

V.  Mich.  South.  &  North.  Ind. 

R.  R.  Co 22  N.  Y.  258 292,  293. 

V.  Wheelock 11  Cush.  277 99. 

Black  t).  Zacharie 3  How.  483 204. 

Blackstone  Manf.  Co.  v.  Inhabitants  of 

Blackstone 13  Gray,  488 205. 

Blair  v.  Mil.  &  Prairie  du  Chien  R.  R. 

Co 20  Wis.  254 156. 

Blake  v.  Davis 20  Ohio,  231 201,  209. 

T.  Williams 6  Pick.  286 138. 

Blanchard  B.  Russell 13  Mass.  1 10,  46,  50,  167,  168, 

329,  348. 

Bliss  V.  Brainard 41  N.  H.  256 47,  50,  58. 

Blodget  «.  Jordan 6  Vt  580 116. 

Blystonet).  Burgett 10  Ind.  28 38,  68. 

Board  of  Public  Works  v.  Columbia 

College 17  Wall.  521 22,  23. 

Bode«.  State 7  0111,326 814. 

Boggs  V.  Mercer  Co 14  Cal.  279 213. 

Bonnafee  v.  Williams 3  How.  674 29. 

Bonsall  c.  Isett 14  Iowa,  309 88. 

Booth  V.  Clark 17  How.  322 295,  296. 

Boothby  v.  Plaisted 51  N.  H.  436 48,  59. 

Borden  r.  Borden 5  Mass.  67 251. 

t).  Fitch 15  John.  121 112,  182. 

Boswell  V.  Dickerson 4  McL.  262 126. 

C.Otis 9  How.  886 24,167. 

Bowen  v.  Bradley 9  Abbott,(N.8.) 395.82. 


OASES    CITED.  XIX 

Bowman  v.  Harding 56  Maine,  559,  &4 

Nat.  Bank.  Reg. 

5 326,327. 

Miller 25  Gratt.  331 82. 

V.  Wathen 2  McL.  377 349. 

Boycer.  Grundy 3  Pet.  210 39,41,207. 

Boyd  V.  Barrenger 23  Miss.  270 174. 

«.  Ellis 11  Iowa,  98 46,50. 

V.  Lambeth 24  Miss.  433 252. 

V.  Rockport  Steam  Mills 7  Gray,  406 44. 

V.  Urquhart 1  Sprague,  423... 125. 

Boyer  «.  Edwards 13  Pet.  65 81. 

Boyle  t).  Zacharie 6  Pet.  348,  635  ...34,  40,  72,  133,  133, 

136,  328. 

Brabston®.  Gibson 9  HoTy.  263 66. 

Bradley  B.  Bank  of  Indiana 20  Ind.  528 145. 

w.  People 4  Wall.  459 322,323. 

Biadstreet.  Hx 2)arte 7  Pet.  634 30. 

Brady  v.  Chicago 4  Biss.  448 157. 

Brand,  In  re 3  Nat.  Bank.  Reg. 

85 327. 

Brandon  v.  Loftus 4  How.  127 30. 

Brashear  v.  West 7  Pet.  608 204. 

Breedloveu.  Nicolet 7  Pet.  413.. 135. 

Brent  «.  Armfield 4  Cr.  C.  C.  579. ..186. 

V.  Chapman 5  Cr.  358 175. 

Brewster's.  Wakefield 22  How\  118 38. 

Briggs  V.  French 1  Sum.  504 43. 

Brigham  ®.  Henderson 1  Cush.  430 134. 

Bright  ?).  Currie 5  Sandf.  433 261. 

Brine  ».  Insurance  Co. 6  Otto.  627 35,36,37,84,208,209. 

Brinkley  «.  Brinkley 50  N.  Y.  184 147.  179,  185. 

Briscoe,  In  re 51  How.  Pr.  422. .225. 

Briscoe  v.  Bank  of  Kentucky 11  PeL  257 21,  75. 

British  Am.  Land  Co.  r.  Ames 6  Met.  391 280. 

Broadhead  v.  Noyes 9  Mo.  56 52. 

Bronsonjt).  Kinzie 1  How.  311 76,  79. 

Brooks  ij.  Floyd 2  McCord,  364  ...261. 

Brookshire  v.  Dubose 2  Jones  Eq.  276.. 252. 

Broome  i).U.  S 15  How.  143 57. 

Broughtoni;.  Bradley 34  Ala.  694 249. 

Brown's  Case 112  Mass.  409 221, 

Brown  v.  Adair . . . .' 1  Stew. &  Port.  49. 122. 

i;.  Birdsall 29  Barb.  549 97. 

B.Brown 4  Ed  w.  Ch.  343.  ..252. 

t.  Camden  &  Atl.  R.  R.  Co 83  Penn.  St.  316.. 72,  346. 

©.Clarke ,...4How.  4 13. 

T.  Desmond 100  Mas.s.  267 100. 

V.  Edson 23  Vt.  435 201,  207,  209. 

©.Gibbons 37  Iowa,  654 327. 


XX  OASES    CITED. 

Brown  v.  Joy 9  John.  231 146. 

V.  Maryland 12  Wheat.  419  ..  .310,  811,  324. 

V.  Mclntire 43  Barb.  844 144. 

t).  Parker 28  Wis.  21 175. 

c.  Phillips 16  Iowa,  210 86. 

Browne  v.  Strode 5  Cr.  303 263. 

Browning  t).  Andrews 3  McL.  576,  and 

13  How.  21 8... 35. 
Bruce  C.Smith 3  Harr.  &  J.  499.198. 

V.  Slate 11  Gill&  J.  382.-57. 

Bryan  v.  Hickson 40  Geo.  405 43. 

Brj'antr.  Hunter 3  Wash.  C.  C.  48.106. 

Buchanan  v.  Alexander 4  How.  20 12,  13. 

Buck  V.  Colbath 3  Wall.  334 12,  338. 

Bucknert).  Finley 2  Pet.  586 10,  66,67. 

Buffum  V.  Stimpson .' 15  Allen,  591 99. 

Buford  c.  Hickman Hempst.  232 18,  112,115. 

Bulkley  v.  N.  Y.  &  N.  H.  R.  R  Co.  ...27  Conn.  479 156. 

BuUen  v.  Runnels 2  N.  H.  255 345. 

Burbank  v.  Fay 65  N.  Y.  57 213. 

Burlock  V.  Taylor 16  Pick.  335 204 

Bum  V.  Cole 1  Ambl.  415 201,  254. 

Burnham  v.  Kangeley 1  Wood.  &  M.  7.  .186,  187, 188. 

Burnley©.  Stevenson 24  Ohio  St.  474. .213. 

Burroughs  v.  Bloomer 5  Denio,  532 176. 

Burrows©.  Miller 5  How.  Pr.  51 146. 

Burtis  t).  Burtis Hopk.  Ch.  557...179. 

Burton  v.  Stewart 11  Ind.  238 88. 

Butler,  Succession  of XI.  Chicago  Legal 

News,  52 265. 

Butler  V.  Farnsworth 4  Wash.  C.  C.  101 .  186. 

V.  Myer 17  Ind.  77 50. 

Butters©.  Olds 11  Iowa,  1 51,  65. 

Butz  t>.  Muscatine 8  Wall.  575 37. 


a 

Cabell*.  Cabell 1  Met.  (Ky.) 3 19..  177, 178. 

Caldwell  v.  Carrington 9  Pet.  86 46,  100. 

Callaway  v.  Doe 1  Blackf.  372 209. 

Camfranque  v.  Burnell 1  Wash.  C.  C.  340.46. 

Campbell,  In  re 1  NaL  Bank.  Reg. 

Sup.  36 329. 

Campbell  v.  Nichols 33  N.  J.  Law,  81.62.  65. 

«.  Tousey 7  Cow.  64 251. 

Canal  Co.  v.  Railroad  Co 4  Gill  &  J.  1 285. 

Canfield  v.  Miller 13  Gray,  274 88. 

Cannon  v.  New  Orleans 20  Wall.  577 310. 

Carey  v.  Berkshire  R.  R.  Co 1  Cush.  475 158, 160. 


CASES    CITED.  XXI 

Carey  ■».  Cin.  &  Chi.  R.  R.  Co 5  Iowa,  357 118,  284. 

Carleton  v.  Bickford 13  Gray,  591 102. 

Carlisle  ®.  Chambers 4  Bush,  268 46. 

«.  State 82  Ind.  55 343. 

Carnagie  v.  Morrison 2  Mot.  397 46. 

Carpenter  v.  Dexter 8  Wall.  513 34,  208,  210,  264. 

V.  Pike 30Vt.  81 92. 

V.  Spooner 2  Sandf.  717 26,222. 

Carrington  v.  Breut 1  McL.  167 60. 

Carroll  v.  East  St.  Louis 67  111.  568 290. 

Carson  i;.  Hunter 46  Mo.  467 172. 

«ase«.  Clarke 5  Mas.  70 186. 

Castello  V.  Landwehr 28  Wis.  522 157. 

Catlin  V.  Hull 21  Vt.  152 206. 

v.  Underhill 4  McL.  199 115. 

Cayuga  Co.  Nat.  Bank  v.  Daniels 47  N.  Y.  631 71. 

Chamberlain  v.  Ward 21  How.  548 304,  305,  307. 

Chamberlin  v.  Ball 15  Gray,  352 112. 

V.  Wilson 45  Iowa,  149 248. 

Champion  v.  Doughty 18  N.  J.  Law,  3.-140. 

Chandler  «.  Warren 30  Vt.  510 88. 

Chapman  v.  Robertson 6  Paige,  627 46,  83. 

i;.  Wilber 6  Hill,  475 242. 

Chappedelaine  v.  Dechenaux 4  Cr.  306 263. 

Charles  River  Bridge  Co.  v.  Warren 

Bridge 11  Pet.  420 76. 

Chase  v.  Chase 6  Gray,  157.^ 180. 

Chatham  Bank  v.  Allison 15  Iowa,  357 61,  62. 

Chautauque  County  Bank  v.  Risley  ...19  N.  Y.  369 296. 

Cheever  v.  Rutland  &  Ben.  R.  R.  Co.  ..39  Vt.  653 70. 

«.  Wilson 9  Wall.  108 7,34,178,181,210,264. 

Cherokee  Nation  «.  Georgia 5  Pet.  1 2,  20. 

Cherry  «.  Slade 3  Murph.  82 156. 

V.  Speight 28  Tex.  503 90. 

Ches®.  The  Appeal  Tax  Court 3  How.  133 78. 

Chiapella®.  Brown 14  La.  Ann.  189.. 347. 

Chicago  c.  Robbins 2  Black,  418 85,  86. 

Child  V.  Eureka  Powder  Works 4.5  N.  H.  547 147. 

Childress?).  Emory 8  Wheat.  642 263,  269. 

ChilversD.  People 11  Mich.  43 347. 

Chirac?).  Chirac 2  Wheat.  260 32. 

Chittenden  i).  Brewster 2  Wall.  191 12,  14,  15. 

Christ  Church  v.  Philadelphia 24  How.  300 287. 

Christmassy.  Russell 5  Wall.  290 105,  107,  108,  173. 

Christy?).  Pridgeon ^.4  Wall.  196 84. 

©.Vest 36  Iowa,  285 248. 

Church  D.  Cole 1  Hill,  645 88. 

Churchill  v.  Boyden 17  Vt  319 249,456. 

Chy  Lung  c.  Freeman 2  Otto,  275 313. 

Cinn.,  etc.,  R.  R.  Co.  v.  Wynne 14  Ind.  -385 147. 


XXll  CASES    CITED. 

City  Bank  c.  Rome,  W.  &  O.  R.  R.  Co..44  N.  Y.  136 72. 

City,  etc..  Ins.  Co.  ».  Carrugi 41  Geo.  660 282. 

City  Ins.  Co.  of  Providence  v.  Commer- 
cial Banlc 68  111.348 207. 

Claremont  c.  Royce 42  Vt  730 290. 

Cl&rk,  Ex  parte 9  Wend.  219 222.225. 

Clark  r.  Binninger 38  How.  Pr.  841, 

and  39  Id.  363.829. 

V.  Braden 16  How.  635 1. 

V.  Clark 8  Cush.  385 182, 188. 

V.  Graham 6  Wheat.  577 201.  208,  209. 

V.  Smith 13  Pet.  195 34,38.  ' 

Clayest).  Hooker 4  Hun,  231 82. 

Clemmer  v.  Cooper 24  Iowa,  182 98, 116. 

Cleveland,  Pains.  »&  Asht.  R  R.  Co.  v. 

Pennsylvania 15  Wall.  300 10.  167,  202,  203. 

Clopton  V.  Booker 27  Ark.  482 190. 

Clymore  «.  Williams 77  111.618 125. 

Coal  Co.  «.  Blatchford 11  Wall.  172 263. 

Coburn  u.  Harvey 18  Wis.  147 33. 

Cohens  t).  Virginia 6  Wheat.  264 9,  10,217,218. 

Cole  V.  Duncan 3  Chi.  Leg.  News, 

323 329. 

Collett  B.  Keith 2  East,  260 118. 

Collins  D.  Chicago 4  Biss.  472 322. 

t».  Rodolph 3  G.Greene,  299.132. 

Colt  V.  Eves 12  Conn.  243 19. 

Columbia  Dela.  Bridge  Co.  v.  Geisse  ..38  N.  J.  Law,  39.348,  350. 

Commerce,  The 1  Black,  574 803. 

Commercial  &  Farmers'  Bank  v.  Pat- 
terson   2  Cr.  C.  C.  346  ...120. 

Commonwealth  v.  Alger 7  Cush.  84 246. 

V.  Andrews 2  Mass.  14 229,  234,  236. 

V.  Aves 18  Pick.  193 50,  58. 

c.  Beaman 8  Gray,  497 229. 

V.  Chesapeake  &  Ohio 

R.  R.  Co 27  Gratt.  344 275 

V.  Cull  ins 1  Mass.  116 229.  233, 234, 235,  236, 

243. 

V.  Deacon 10  S.  &  R.  129  ..  .219,  220,  228. 

V.  Eastern  R   R.  Co... 5  Gray,  473 164. 

V.  Green 17  Mass.  515 220,  227. 

«.  Holder 9  Gray,  7 229. 

V.  Howard 13  Mass.  221 164. 

V.  Hunt 4  Cush.  49 182. 

C.Kinney '. 6   The    Reporter, 

733 192. 

«.  Macloon 101  Mass.  1 240. 

V.  Metropolitan   R    R. 
Co 107  Mass.  236.. ..164. 


CASES    CITED.  XXlll 

Commonwealth  v.  Milton 13  B.  Men.  212... 286. 

».  Phillips 11  Pick.  38 113. 

V.  Rhoads 37  Penn.  St.  60...267.- 

V.  Uprichard 3  Gray,  434 339,  234,  286,  243. 

V.  Van  Tuyl 1  Met.  (Ky.)  l."-..240. 

Compton  V.  Wilder .7  Am.  Law  Record, 

213 320. 

Conantv.  Van  Schaick 34  Barb.  87 75. 

Connecticut  Mut,  Life  Ins.  Co.  v.  Cross. 18  Wis.  109 388,  28y. 

Conner  ».  Elliott 18  How.  591 269. 

Consequa®.  Willings Pet.  C.  C.  335 58,  130. 

Conway  v.  Taylor 1  Black,  603 347,  348,  349,  350. 

Cook  V.  Hull 3  Pick.  370 345. 

«.  Moffat 5  How.  395 50,  51,  133,  133,  134, 

338. 

?j.  Pennsylvania 11  Chicago  Legal 

News,  65 314. 

V.  Thornhill 13  Tex.  393 267. 

«.  Wilson Litt.Sel.Cases,437.130. 

Cookendorfer  v.  Preston 4  How.  317 13. 

Cooley  B.  Wardens  of  Phila 13  How.  399 315,  330. 

Cooper  V.  Dismal  Swamp  Canal  Co 3  Murph.  L.  &  Eq. 

(N.  C.)195 373,274. 

«.  Galbraith 3  Wash.  C.  C.  546.226. 

B.Reynolds ..10  Wall.  308 88,136,  167. 

t>.  Smith 25  Iowa,  369 134. 

Corbett  «.  Nutt 10  AVall.  464 313. 

Corfield  v.  Coryell 4  Wash.  C.  C.  371.225,  286,  310,  335. 

Corner  «.  Mallory 31  Md.  468 337. 

Corning  v.  McCuIlough 1  N.  Y.  47 75. 

Corwin  v.  N.  Y.  &  Erie  R.  R.  Co 13  K  Y.  43 156. 

Cottier.  Cole 20  Iowa,  481 104. 

Council  Bluffs  v.  Kansas  City,  etc.,  R. 

R.  Co 45  Iowa,  338 310. 

Course  t).  Stead 4  Dal.  22 30. 

Courtney  v.  Carr 6  Iowa,  338 124. 

Courtois  V.  Carpenter 1  Wash.  C.  C.  376.46. 

CovingtonDrawBridgeCo.«.Shepherd-20  How.  227 386. 

Cowles  V.  Mercer  Co 7  Wall.  118 355. 

Coxu.  U.  S 6  Pet.  173 46,51,56,65. 

Crafts  V.  Clark 38  Iowa,  837 130. 

Cragin  u.  Lamkin 7  Allen,  395 44,119,131. 

Craig  ».  Brown Pet.  C.  C.  353....  113,  113,  115,  117. 

Crandall  ^j.  Nevada 6  Wall.  35 10,315. 

Crane  v.  Reeder 31  Mich.  34 174. 

Craven©.  Craven 37  Wis.  418 181. 

Crawford  v.  Burnham 4  Am.  Law  Times, 

(o.s.)338 30. 

V.  Graves 15  La.  Ann.  343.. 351. 

Crenshaw  v.  Anthony Mart.  &  Yer.  103.198. 


XXIV  CASES    CITED. 

Crosby  t>.  Berger 8  Edw.  Ch  688.  .60. 

V.  Leavitt 4  Allen.  410 248. 

Crouch  t).  Crouch 30  Wis.  667 130. 

C.Hall 15  111.263 33. 

Croudson  v.  Leonard 4  Cr.  133 101. 

Crowe.  Coons 27  Mo.  512 132. 

Crusoe  e.  Butler   86  Miss.  150 211. 

Culbreth,  ExparU 49  Cal.  436 223,  225. 

Curtis  V.  Bradford 83  Wis.  190 142,  143. 

Cutter  0.  Davenport 1  Pick.  81 209,252. 


D. 

Dacostav.  Davis 4  Zab.  319 46. 

Dakin  e.  Pomeroy 9  Gill,  1 198. 

Danforthe.  Penny 3  Met.  564 128. 

V.  Thompson 34  Iowa,  243 87,  88,  92,  129. 

Dangerfield  v.  Thruston 20  Mart.  232 251. 

Daniels  v.  Hudson  R.  Ins.  Co 12  Cush.  416 49. 

V.  Willard 16  Pick.  36 204. 

Darby  c.  Mayer 10  Wheat.  465  ..  .208,  209. 

D'Arcyt).  Ketchum 11  How.  165 100,101,113,133,167. 

Darrahu.  Watson 36  Iowa,  116 87,  88.  117. 

Darrancec.  Preston 18  Iowa,  396 23.  88,  112. 

Dart  t3.  Goss 24  Mich.  266 97. 

Dartmouth  College  v.  Woodward 4  Wheat.  518 75,  178. 

Dater«.  Earle 3  Gray,  482 46. 

Davenport*.  Karnes 70  111.  465 82. 

V.  Miss.,  etc.,  R.  R.  Co 12  Iowa,  539 202,  275. 

Davidson  c.  Lawrence 49  Geo.  335 174. 

V.  Nebaker 21  Ind.  334 88. 

«.  Sharpe 6  Ired.  14 102. 

Davis  c.  Bronson 6  Iowa,  410 46,50,58,68. 

C.Curry 2  Bibb,  238 120. 

C.Davis 30  III.  180 188. 

c.  Estey 8  Pick.  475 254. 

c.  Garr 6  N.  Y.  124 88. 

c.  Headley 22  N.J.  Eq.  115.. 105. 

e.  Morton 4  Bush,  442,  and  5 

Id.  160 66,145. 

c.  Smith 5  Gen.  274 102. 

Dawes  c.  Boylston 9  Mass.  837 255. 

c-  Head 3  Pick.  128 196,  254 

Day  c.  Bardwell 97  Mass.  246 329. 

Dean  v.  Chapin 22  Mich.  275 18. 

De  Armond  v.  Bohn 12  Ind.  607 145. 

De  Berner  c.  Drew 39  How.  Pr.  466.  .283. 

De  Couche  c.  Savetier 8  John.  Ch.  190  .  .194. 


CASES    CITED.  XXV 

Delion  v.  Foster 4  Allen,  545,  and  7 

Id.  57 43,44. 

De  Lane  v.  Moore 14  How.  253 198,  200. 

De  Lovio  c.  Boit 2  Gall.  474 301,  303. 

Dene.  Sharp 4  Wash.  C.  C.  609.190. 

Dennison  v.  Williams 4  Conn.  402 87. 

Dennistoun  t).  Draper 5  Blatch.  336 353,  359. 

Denny  v.  Williams 5  Allen,  1 .60. 

DepauwB.  New  Albany 22  Ind.  204 205. 

Depeau  v.  Humphreys 8  Mart.  (n.  s.)  1  ..46,  82. 

Derrickson  «.  Smith 3  Dutch.  166 98,  148,  156,291. 

De  Sobry  t).  De  Laistre 2  Harr.  &  J.  181..120,  194. 

Despard  «.  Churchill 53  K  Y.  192 194,  196,  197. 

Dewing  v.  Perdicaries 6  Otto,  193 76. 

De  Wolf  p.  Johnson ..10  Wheat.  367  ..  .46,  47,  48,  50,  65,  83, 

148. 

Dial  «.  Reynolds 6  Otto,  340 42. 

Dickens  v.  N.  Y.  Cent.  R.  R  Co 1  Abb.  Dec.  504.. 157. 

Dickinson  v.  McCraw 4  Rand.  (Va.)  158.251. 

Diggs  V.  Wolcott 4  Cr.  178 16.  42. 

Dimick  v.  Brooks 21  Vt.  569 55,  95,  96,  98. 

Ditson  V.  Ditson 4  R.  I.  87 180, 181,  182. 

Dixou  D.  Ramsay 3  Cr.  319 27,251,252,253. 

v.  Thatcher 14  Ark.  141 121. 

Dodge  V.  Perkins 4  Mas.  435 30. 

B.  Woolsey 18  How.  331 10,  75,  76,  78. 

Doe  V.  Collins 1  Ind.  24 168. 

V.  Litherberry 4  McL.  442 188. 

c.  McFarland 9  Cr.  151 251. 

?j.  Woody 4  McL.  75 266. 

Donnelly  c.  Corbett 7  N.  Y.  500 132,  134, 135,  328. 

Dorr,  ExparU 3  How.  103 332. 

Dougan  v.  Champlain  Trans.  Co 6  Lans.  430,  and 

56  N.Y.I 303,306,307. 

Douglas  ».  Oldham 6  N.  H.  150 52. 

Doulson  V.  Matthews 4  T.  R.  503 140. 

Dow  v.  Rowell 12  N.  H.  49 61,  64. 

Downer  v.  Chesebrough ..36  Conn.  39 46. 

Dow'sCase 18  Penn.  St.  37. ..225. 

Dows  V.  Greene 24  N.  Y.  6-38 71. 

Doyle  t).  Continental  Ins.  Co 4  Otto,  535 287,  355,356. 

Drake  v.  Gilmore 52  N.  Y.  389  .....157. 

Ducat?).  Chicago 10  Wall.  410 285.*287. 

Duffies  V.  State 7  Wis.  672 153. 

Dufresne  v.  Weise 1  Wis.  Leg.  News, 

209 144. 

Duncan  «.  Darst 1  How.  301 11,  16,331,333. 

V.  Helm 22  La.  Ann.  418. .65,  81. 

c.  McCullough 4  S.  &  R.  480 64. 

V.  U.  S 7  Pet  435 46,  56. 


XXVI  OASES    CITED. 

Dunclasc.  Bowler 8  McL.  400 61, 189. 

Dunlap  V.  Cofly 81  Iowa,  260 108. 

Dunn  B.Adams 1  Ala.  527 64. 

V.  Clark 8  Pet.  1 42. 

Dunscomb  v.  Bunker 2  Met.  8 47. 

Dupasseur  t.  Rochereau 21  Wall.  180 31. 

Dupuy  V.  Wurtz 53  N.  Y.  556 196. 

Dutcherc.  Dutcher 30  Wis.  651 181. 

Duvall  V.  Fearson 18  Md.  502 105. 


E. 

Eagle,  The 8  Wall.  21 802. 

Eames,  Exparte 2  Story,  322 329. 

Earl  r.  Raymond 4  McL.  2:33 146. 

Eaton  &  Hamil.  R.  R.  Co.  v.  Hunt  ....20  Ind.  457 145. 

Edith,  The 4  Otto,  518 305. 

Edmonds  v.  Montgomery 1  Iowa,  143 101. 

Edwards  c.  Elliott 21  Wall.  532 308. 

Eggleson  «.  Battles 26  Vt.  548 189. 

Egleston  v.  Charleston 1    Tread.    (8.   C.) 

Const.  45 205. 

Ela  V.  Edwards 13  Allen,  48 250,  257. 

Elder  «.  Reel 62  Pen n.  St.  308.. 181. 

Elliott  B.Ray 2  Blackf.  31 183. 

Ellis  e.  Maxson 19  Mich.  186 122. 

D.White 25  Ala.  540 33. 

Elmendorf  B.  Taylor 10  Wheat.  152  ..  .37,  84. 

Elmore  v.  Mills 1  Hayw.(N.C.)  359.120. 

Emerson  r.  Patridge 27  Vt.  8 69. 

Emery  v.  Berry 28  N.  H.  473 121. 

Engel  V.  Scheuerman 40  Geo.  206 4a 

Ennis  v.  Smith 14  How.  400 8,  200,  207 

Erickson  t».  Nesmith 4  Allen,  233,  46  N. 

H.  371,  and  15 
Gray,  221 98,291. 

Erwint).  Lowry 7  How.  172 297. 

Eubanks  v.  Bank 34  Geo.  407 179. 

Evans  v.  Anderson 78  111.  558 46,  82. 

V.  Davenport 4  McL.  574 190. 

V.  Tatem 9  S.  &  R.  252 93. 

Everett  v.  Vendryes 19  K  Y.  436 63. 

Express  Co.  c.  Kouutze 8  Wall.  342 355. 

Eyre  v.  Storer 37  N.  H.  114 209. 


Pabert).  Hovey 117  3Iass.  107 90. 

Fanning  v.  Gregoirc 16  How.  524 347,  849. 


CASES    CITED.  XXVll 

Farmers' Loan  &  Trust  Co.  T.McKlnney.e  McL.  1 290. 

Farmers'  &  Mechanics'  Bank  v.  Smith. 6  "Wheat.  131 76,  328. 

Farmers'    &    Merchants'    Ins.    Co.   v. 

Needles 52  Mo.  17 295. 

Farnesworth  v.  Terre  Haute,  etc.,  R.  R. 

Co 29  Mo.  75 27. 

Farnum  v.  The  Blackstone  Canal  Co.-.l  Sum.  47 291,  293. 

Farr  v.  Ladd 37  Vt.  158 .92. 

Farrington  v.  Wilson 29  Wis.  383 268. 

Faulkner  v.  Dela.  &  Rar.  Canal  Co 1  Denio,  441 283. 

Fayi).  Oatley 6  Wis.  42.. 222,  225. 

Felch  V.  Bugbee 48  Maine,  9 132, 133, 134.  135. 138. 

Fellows  V.  Blacksmith 19  How.  366 1,  2,  20. 

V.  Pres.&  TrusteesofMenasha.il  Wis.  558 118.  119. 

Fenwick  v.  Sears 1  Cr.  259 27,  251,  252. 

Ferguson  v.  Clifford 37  N.  H.  86 68,  203. 

V.  Harwood 7  Cr.  408 114,  116. 

Ferrill  v.  Commonwealth 1  Duvall,  153 229. 

Fetter,  In  re 3  Zab.  311 221. 

Field  v.  Gibbs Pet.  C.  C.  155. ...106. 

V.  Sanderson 34  Mo.  542 100. 

Findlay  v.  Bank  of  U.  S. 2  McL.  44 30. 

Finley -».  Philadelphia 32  Penn.  St.  381.. 206. 

First  Nat.  Bank  of  Cinn.  v.  Kelly 57  N.  Y.  34 71. 

Plymouth  v.  Price.33  Md.  487 98,  148,  156,  291.' 

Toledo  V.  Shaw  ..  .61  N.  Y.  283 71,  72. 

Fisher  v.  N.  Y.  Cent.  R.  R.  Co 46  N.  Y.  644 156. 

V.  Otis 3  Chand.  S3 46. 

Fitch  c.  Remer 1  Biss.  337 49. 

Fitzsimmons  ?).  Marks 66  Barb.  333 125. 

Fletcher  v.  Peck... 6  Cr.  88 75,  76. 

V.  Spaulding 9  Minn.  64 173. 

Flint  &  Pere  Marquette  R.  R.  Co.  v. 

Lull 28  Mich.  510 156. 

Florida  B.  Georgia 17  How.  478 20. 

Flowers  v.  Foreman  1 23  How.  132 172. 

Ford  V.  Buckeye  State  Ins.  Co 6  Bush,  133 47. 

Forest  ».  Forest 6  Duer,  102 180. 

Forward  v.  Harris 30  Barb.  338 60. 

Foster  v.  Davenport 22  How.  244 314. 

V.  Glazener 27  Ala.  391 10,  160,  167,  168. 

».  Julien 24N.  Y.  28 64. 

V.  Master,  etc.,  of  New  Orleans.4  Otto,  246 310. 

V.  Neilson 3  Pet.  253 1,  20. 

Fourcher,  Marquise  de  Circe,  Succes- 
sion of 11  Chicago  Legal 

News,  52 265. 

Fourke  ».  Fleming 13  Md.  392 203. 

Fourvergne  v.  New  Orleans 18  How.  470 265. 

Fowler  v.  Hecker 4  Blatch.  425 30. 


XXVlll  CASES    CITED.  | 

Foxc.  Hoyt 12  Conn.  497 92. 

Fo.xcroftp.  Mallett 4  How.  353 87,85. 

Francis  v.  The  Harrison 1  Sawyer,  355 305. 

Franklin  v.  Twogood 25  Iowa,  520 36,  46. 

Frazier  e.  Wlllcox 4  Rob.  (La.)  519 ..280. 

Freeholders  of  Hudson  Co.  v.  State  ...4  Zab.  718 349. 

Freeman  v.  Howe 24  How.  450 12,  13,  338. 

Freese  t).  Brownell 35  N.J.  285 60,  62,  63. 

French  v.  Hall 9  N.  H.  187 40. 

V.  Lafayette  Ins.  Co 5  McL.  461 190. 

Fretz  V.  Bull 12  How.  468 302. 

Frink  v.  Sly 4  Wis.  310 27. 

Frith®  Sprague 14  Mass.  235 120. 

Frost  r.  Brisbin 19  Wend.  11 186. 

Frothingham  v.  Barnes 9R.  I.  474 97. 

Fulton,  The  Robert 1  Paine,  621 338. 


Gaines  v.  Chew 2  How.  609 40. 

V.  Gaines 9  B.  Mon.  295 178. 

V.  Henner 24  How.  553 264 

V.  New  Orleans 6  Wall.  642 264 

«.  Relf 15  Pet.  9 40. 

Galpin  ij.  Page 18  Wall.  350 107. 

Garcia  v.  Lee 12  Pet.  511 1,  20. 

Gardner  c.  Lewis 7  Gill,  377 138. 

r.  Lindo 1  Cr.  C.  C.  78....115. 

C.Thomas 14  John.  135 143,  143,155. 

Garrett  «.  Beaumont 24  Miss.  377 174. 

Gassies  t).  Ballon 6  Pet.  761 19,  30,225. 

Gate  City,  The 5  Biss.200 306. 

Gay  V.  Lloyd 1  G.  Greene,  78..  122. 

Gelpcke  tj.  Dubuque 1  Wall.  175 85,86. 

Gelstonu.  Hoyt 3  Wheat.  246 1. 

Genesee  Chief,  The,  v.  Fitzhugh 12  How.  448 301,  302,  306,  310,  336. 

Georgia  «.  Johnson 4  Wall.  500 20. 

V.  Stanton 6  Wall.  50 1,  2,  20. 

Gibbons  tJ.  Ogden 9  Wheat.  1 246,310,313,347,348. 

Gibbs  V.  The  Queen  Ins.  Co 63  N.  Y.  114 282. 

Gibson  t).  Chew 16  Pet.  315 67. 

t).  Chouteau 13  Wall.  92 174 

V.  Stevens 8  How.  384 72. 

Gilbert  v.  Moline  Water  Power  &  Manf. 

Company 19  Iowa,  319 87,  337,  338,  84L 

Gilchrist  v.  Cannon 1  Cold.  581 249. 

Gillespie  v.  Hannahan 4  McCord,  503... 64. 

Gillettt).  Hall 32  Iowa,  220 175. 

Gilman  t).  Gilman 53  Maine,  184 269. 


CASES    CITED.  XXIX 

Gilman  V.  Lockwood 4  Wall.  409 133,  328. 

V.  Philadelphia 3  Wall.  713 320,  324. 

U.Williams 7  Wis.  329 14. 

Gist  V.  Lybrand 3  Ohio,  307 64. 

aieason  v.  Gleason 4  Wis.  64 179,  180. 

Glen  V.  Hodges 9  John.  67 142,  143. 

Glenn  W.Smith 2  Gill  &  J.  493.. 251. 

V.  Thistle 23  Miss.  42 51,  211. 

Globe,  The 2  Blatch.  427 23. 

Goddard  v.  Sawyer 9  Allen,  78 209. 

Gold  V.  Housatonic  R  R.  Co 1  Gray,  424 128,  129. 

Golden  ».  Cockrill 1  Kan.  259 69. 

Goodall  t>.  Marshall 11  K  H.  88 249.  256. 

V.  Tucker 13  How.  469 258. 

Goodwin  v.  Jones 3  Mass.  514 251,  253. 

Gordon  v.  The  Appeal  Tax  Court 3  How.  133 78. 

Gorman  t).  Marsteller 2  Cr.  C.  C.  311.. .140,  141. 

V.  Pacific  R.  R.  Co.. 26  Mo.  441 156. 

Governor  v.  Wood  worth 63  111.  254 174. 

Governor  of  Geo.  v.  Mandrazo 1  Pet.  110 20. 

Graeme  v.  Harris 1  Dall.  45G 253. 

Graham,  Ex  parte 3  Wash.  C.  0.  456.28. 

Graham  «.  Monsergh 22  Vt.  543 148,149,150,152,153. 

Grant  B.  Bledsoe 20  Tex.  456 105. 

V.  Healey 3  Sumn.  523 72. 

B.King 31  Mo.  313 130. 

V.  McLachlin 4  John.  34.. 101. 

Grattan  v.  Appleton 3  Story,  755 196. 

GreasonsB.  Davis 9  Iowa,  219 120,  358. 

Green  V.  Biddle 8  Wheat  1 75. 

V.  Creighton 33  How.  90 12,40,42. 

V.  Hudson  Riv.  R.  R.  Co 2  Keyes,  294.  ....157. 

V.  Neal's  Lessee 6  Pet.  391 31,  37,  84. 

B.  Rugely 23  Tex.  539 200,201,303. 

®.  Sarmiento 3  Wash.  C.  C.  17 

&  Pet.  C.  C.  74.47,  106. 

c.VanBuskirk 7  Wall.  139  &  5  Id. 

307.. 69,  70,  101, 138,  139. 

Greenough, /«,  re 31  Vt.  379 331. 

Greenwood  v.  Curtis 6  Mass.  358 46,  50,  168, 178. 

Griffins.  Eaton 37  111.379 89. 

tJ.  Griffin 47  N.  Y.  134 179. 

Griffith*.  Frazier 8  Cr.  9 33,  33,363. 

Grimes  v.  Talbert 14  Md.  169 349. 

Griswold  v.  Pratt 9  Met.  16 339. 

Grossmeyertj  U.  S 4  Nott  &  H.  1...3. 

Grover  ».  Grover 30  Mo.  400 100. 

Guillander  V.  Howell 35  N.Y.  657 69,  194,  195,  1)^6,  197. 

Gut  V.  Minnesota 9  Wall.  35 30,  85. 


XXX  OASES    CITED. 


Hacker  t>.  Stevens 4  McL.  535 125, 146. 

Hacket  c.  Bonnell 16  Wis.  471 99,  120. 

Hackettstown  Bank  «.  Rhea 6  Lans.  455 49. 

Hade  v.  Brotherton 3  Cr.  C.  C.  594  ...114, 116. 

Hadley  v.  Dunlap 10  Ohio  St  1  ....287. 

p.  Russell 40  N.  H.  109 291. 

Hagan  t>.  Lucas 10  Pet.  400 12.  13, 14. 

Hagenc.  Kean 3  Dill.  124 157. 

Haggart  c.  Morgan 5  N.  Y.  422 186. 

Hahnemannian  Life  Ins.  Co.e.  Beebe..48  111.  87 280,  281. 

Hakes  v.  Shupe 27  Iowa,  465 23, 112. 

Hall  V.  Costello 48  N.  H.  176 34. 

K.Harrison , 21  Mo.  227 260. 

V.  Williams 6  Pick.  232 92, 106. 

Halliburton  v.  Fletcher 22  Ark.  453 99. 

Halsey  r.  McLean 12  Allen.  438 98, 148,  156. 

V.  Stewart 4  N.  J.  366 26. 

Ham  V.  Rogers 6  Blackf.  559 140. 

V.  State 17  Ala.  188 229. 

Hamilton  v.  Kneeland 1  Nev.  40 33. 

«.  State 11  Ohio,  435 229,236,237,238. 

Hampton  v.  McConnel 3  Wheat.  234 106.  117. 

Hanberry  v.  Hanberry 29  Ala.  719 180, 181. 

Handly  t).  Anthony 5  Wheat.  374 343. 

Hanover  «.  Turner 14  Mass.  227 179,182. 

Hanover  Fire  Ins.  Co.  v.  Tomlinson...6  Thomp.  &  C.  127 

i&  3  Hun,  630 -.96. 

Hanson  v.  Hiles 34  Iowa,  350 71. 

Hapgood  V.  Jennison 2  Vt.  294 109,  255. 

Harding  v.  Alden 9  Greenl.  140 181. 

Hardy  v.  De  Leon 5  Tex.  211 188. 

Harper  v.  Butler 2  Pet.  239 261. 

Harriott  «.  N.  J.  R.  R  Ck) 2  Hilt.  262 281. 

Harris  «.  Burton 4  Har.  (Del.)  66.. 211. 

p.  Dennie 3  Pet.  292 13. 

p.  Hardeman 14  How.  334 112. 

Harrison  v.  Edwards 12  Vt.  648 172. 

V.  Harrison 20  Ala.  629 183. 

«.  Sterry 5  Cr.  289 186,  138. 

Harshey  B.  Blackmarr 20  Iowa.  161 106. 

Hart  V.  Anthony 15  Pick.  445 128. 

cBostwick 14Fla.  162 174. 

r.Lindsey 17  N.  H.  235 267. 

Harteau  v.  Harteau 14  Pick.  181 181. 

Hartlandt).  Church 47  Maine.  169 204. 

Harvey  t.  Marshall 9  Md.  194 209. 

V.  Richards 1  Mas.  881 42. 194,  196,  197.  254, 

255. 


CASES    CITED.  XXXI 

Hatch  V.  Chi.  R.  I.  &  Pac.  R  R.  C0....6  Blatch.  105 37,  355. 

V.  Seeley 37  Iowa,  493 326,  287. 

Hatcher  tj.  McMorine 4  Dev.  122 61. 

Haussknecht  v.  Claypool 1  Black,  431 30. 

Haverhill  Ins.  Co.  v.  Prescott 42  K  H.  547 284. 

Hawkins,  In  re 2  Nat.  Bank.  Reg: 

122 329. 

Hawkins  v.  Barney 5  Pet.  456 76. 

Hawley  v.  Hunt 27  Iowa,  303 132,  133. 

Hawthorne  «.  Calef 2  Wall.  10 75,76. 

Hayden  v.  Davis. 3  McL.  276 50. 

Hayneu.  Delieselline 3  McCord,  374.. .205. 

Hays  V.  Pacific  Mail  Steamship  Co..--17  How.  596 318,  320. 

Healy  «.  Root 11  Pick.  389 291. 

Heebner  «.  Eagle  Ins.  Co 10  Gray,  131 283. 

Helfenstein  v.  Cave 3  Iowa,  287 53. 

Helms  V.  Rookesby 1  Met.  (Ky.)  49. ..265. 

Hemmaker  t).  State 12  Mo.  453 239. 

Henderson  t).  Griffin 5  Pet.  151 37,  84. 

B.  Mayor  of  New  York 2  Otto,  256 313. 

V.  Rost 15  La.  Ann.  405. .251. 

V.  Staniford 105  Mass.  504 89. 

Hendrick  «.  Brandon 9  Iowa,  319 124. 

Henry  B.  Doctor 9  Ohio,  49 209. 

V.  State. 7  Cold.  331 229. 

Herndon  v.  Ridgway 17  How.  424 23. 

Heyward, /nre 1  Sandf.  701 221,  222,  225 

Hiestand  t).  Kuns.... 8  Blackf.  345 189. 

Hill«.  Frazier 22  Penu.  St.  320.. 98. 

t).  Mendenhall 21  Wall.  453 103. 

«.  Spear 50  N.  H.  253 48,59. 

B.  Townsend 24  Tex.  575 196. 

^.Tucker 13  How.  458 258,259.  ' 

Hinde  c.  Vattier 5  Pet.  398 114. 

Hindmanc.  Mackall 3  G.  Greene,  170.-106. 

Hinds  V.  Hinds 1  Iowa,  36 187. 

Hine,  The,  ■».  Trevor 4  Wall.  555 301. 

Hines  v.  Rauson 40  Geo.  356 43. 

mtfv.  Townsend 24  Tex.  575 196. 

Hobart  e.  Drogan 10  Pet.  108 321. 

Hobbs  V.  Manhattan  Ins.  Co 56  Maine,  417 37,  355. 

Hockaday  v.  Skeggs 18  La.  Ann.  681. .105. 

Hoffman  v.  Hoffman 46  N.  Y.  30 90,  181,  182. 

Hoggc.  Charlton 25  Penn.  St.  200.-145,  146. 

Holbrooke.  Vibbard 2  Scam. 465 61. 

Holden  v.  Putnam  Ins.  Co 46  N.  Y.  1 287. 

Holland  ij.  Pack Peck,  151 156. 

Hollingsworth  v.  Virginia 3  Dall.  378 21. 

Holmm,  Ex  parte 28  Iowa,  88 9,12,15,16,329,332. 

Holman  t).  Johnson Cowper,  341 59.  ^MM 


A 


J 


XXXll  CASES    CITED. 

Holmes  t.  Bronghton 10  Wend.  75 118. 

V.  Holmes 4  Lans.  888 180. 

V.  Jennison 14  Pet.  540 220,  226. 

V.  Mallelt Morris,  (la.)  82  ..192,  198. 

r.  Remsen 20  John.  229  &  4 

John.  Ch.  460.. 138,  194,  204,  251. 

Holt  V.  Alloway 2  Blackf.  108  ....88. 

Home  Ins.  Co.  v.  Davis 29  Mich.  238 287. 

V.  N.  W.  Packet  Co.... 32  Iowa,  323 306. 

Hooper  v.  Scheimer 23  How.  235 214. 

Hope  Mut.  Life  Ins.  Co.  v.  Taylor 2  Rob.  (N.Y.)  278.296. 

Hopkins  v.  Coburn 1  Wend.  292 26. 

V.  Hopkins 35  N.  H.  474 181. 

Hopson,  Matter  of 40  Barb.  34 216. 

Hornet.  The 2  Abb.  (N.  s.)  35-.3. 

Houghton  V.  Maynard 5  Gray,  552 134. 

V.  Page 2  N.  H.  42 46. 

C.Raymond 1  Sandf.  682 88. 

Housberger,  7/1.  re 2  Nat.  Bank.  Reg. 

33 327. 

Houston  «.  Newland 7  Gill  &  J.  480 ..139. 

Hover  c.  Penn.  R.R.  Co 25  Ohio  St.  667.. 156. 

How  V.  Kane 2  Pinn.  531 361. 

Howard  v.  Bugbee 24  How.  461 79. 

Hoyt  c.  Thompson 5  N.Y.  320  &  19 

N.Y.  207 5,296. 

Hubbard  v.  Supervisors 23  Iowa,  130 32-3. 

Hubbell  V.  Hubbell 3  Wis.  662 179,  180. 

Huey's  Appeal 1  Grant's  Cases,  51. 190, 191, 192. 

Huff  V.  Hutchinson 14  How.  586 58. 

Hughes,//*  re Phillips    (N.  C.) 

Law,  57 21. 

Hughes*.  Hughes 14  La.  Ann.  85.. .190. 

V.  Klingender 14  La.  Ann.  857.. 5. 

Hull  T.  Augustine 23  Wis.  383 119,  122. 

Humphreys  v.  Humphreys 3  P.  Wms.  349  ...254. 

Humphries  c.  Dawson 88  Ala.  199 145. 

Hunt  V.  Columbian  Ins.  Co 55  Maine,  290 296. 

r.  Hunt 44N.  Y.  27 118. 

B.  Lyle 8  Yerg.  142 112. 

».  Palao 4  How.  589 362. 

V.  Pownal 9  Vt.  411 54,  55. 

V.  Standart 15  Ind.  33 60,  6L 

Hunter  u.  State 40N.  J.  Law,  495.240. 

v.V.S 5  Pet.  173 137. 

Hurd  1?.  Jarvis 1  Pinn.  475 130. 

Huse  V.  Flint 29  Iowa,  501 64. 

V.  Hamblin 29  Iowa,  501 64. 

V.  McDaniel 29  Iowa,  501 64. 

Hutchins  v.  Hanna 8  Ind.  533 61. 


CASES    CITED.  XXXIU 

Hutchins  v.  New  England  Coal   Min. 

Co 4  Allen,  580 289. 

Hyde  v.  Stone 20  How.  170 38,  40,  41. 

Hylton  V.  Brown 1  Wash.  C.  C.  298.186. 


HI.  Cent.  R.  R  Co.  v.  Carraher 47  111.  333 156. 

V.  Cobb 48  III.  402 128. 

Ilsley  B.  Nicholls 12  Pick.  270 108. 

Indiana  «.  Helmet 21  Iowa,  370 148,  151,  156. 

V.  John 5  Ham.  218 54,  56. 

7.nglis  V.  Usherwood 1  East,  515 73. 

lugraham  v.  Chicago,  D.  &  M.K  R.  Co.. 34  Iowa,  249 321. 

©.  Geyer 13  Mass.  146 44. 

V.  Hart 11  Ohio,  255 118. 

Inman  Steamship  Co.  v.  Tinker 4  Otto,  238 310. 

Insurance  Co.  v.  Dunn 19  Wall.  214 287,  355. 

?j.  Morse 20  Wall.  445 37,  41,  286,  287,  288, 

355,  356. 

V.  Pechner 5  Otto,  183 358,  359.     • 

Irvine  v.  Lowry 14  Pet.  293 124. 

B.Marshall. 20  How.  558 214. 

Ives  V.  Allyn 12  Vt.  589 265. 

«.  Finch 28  Conn.  112  ..  ..87. 


Jackson  v.  Ashton 8  Pet.  148 30. 

V.  Chew 12  Wheat.  153..  .85. 

V.  Hanna 8  Jones  Law,  188.213. 

Jacquette  c.  Hugunon 2  McL.  129 106,  172. 

Jaffray  B.  Dennis 2  Wash.  C.  C.  253.58. 

Jameson  v.  Gregory .4  Met.  (Ky.)  363.. 46. 

.Jefferson  Branch  Bank  v.  Skelly 1  Black,  436 75. 

.Jefferson,  The  Thomas 10  Wheat.  428. ..302,  303. 

.Jeffersonville  R.  R.  Co.  v.  Swayne 26  Ind.  447 249. 

Jenkins  v.  Kinsley 3  John.  Cases,  474.112. 

•Jenness  v.  Jenness 24  Ind.  355 .181,  188. 

.Jerusalem,  The 2  Gall.  191 305.      "^ 

.Jeter  B.  Fellowes 32  Penn.  St.  465. .203. 

Johns  «.  State 19  Ind.  421 243,244. 

Johnson  v.  Butler 2  Iowa,  535 88. 

V.  Copeland 35  Ala.  521 .196. 

V.  Dalton 1  Cow.  543  .*. 142,  155. 

V.  Gregory 4  Met.  (Ky.)  363.-59. 

V.  Holley 27  Mo.  594 101. 

V.  Lexington 14  B.  Mon.  648.  ..206. 

3 


XXXIV  OASES    CITED. 

Johnson  v.  Mcintosh 8  Wheat.  543 214, 

V.  Rannalls 6  Mart,  (n,  s.)  621.112. 

Jones  «.  Berkshire 15  Iowa,  248 208. 

©.Jones 18  Ala.  248 60,  172. 

V.  League 18  How.  76 857. 

©.Leonard 13  West.  Jur.  15..224. 

V.  Spencer 15  Wis.  583 100,  101. 

V.  Taylor 30  Vt.  42 68,  139,  203. 

V.  Walker 2  Paine,  688 1. 

©.Winchester 6  N.  H.  497 128. 

Jordan  v.  James 5  Ham.  88 74 

Jose  Ferreira  dos  Santos,  Case  of 2  Brock.  493 220. 

Josephine,  Steamboat,  lure 39  K  Y.  19 11. 

Joslyn,  In  re 3  Nat.  Bank.  Reg. 

118 327. 

Judge  of  Probate  v.  Hibbard 44  Vt.  597 154, 156. 

Junction  Railroad  v.  Ashland  Bank...  12  Wall.  226 49,  65,  81. 

Juneau  Bank  v.  McSpedan 5  Biss.  64 26. 


Kanaga  t>.  Taylor 7  Ohio  St.  134. ..82. 

Kansas  Pac.  R.  R.  Co.  v.  Miller 2  Col.  442 157. 

Karricku.  Pratt 4  G.  Greene,  144.. 250,  251. 

Kashaw  B.  Kashaw 3  Cal.  312 180. 

Kean  v.  Rice 12  S.  &  R.  203  ...92,  120. 

Keary  v.  Farmers'  &  Merchants'  Bank. 16  Pet.  89 35. 

Keept.  Sanderson 12  Wis.  353 131. 

Kellam  v.  Toms 38  Wis.  593 95. 

Keller  v.  N.  Y.  Cent.  R.  R  Co 2  Abb.  Dec.  480..  157. 

Kelley  v.  Drury 9  Allen,  27 132,  328. 

Kelly  e.  Crapo 45  N.  Y.  86 194, 196. 

Kendall  v.  U.  S 12  Pet.  526 23. 

V.  Windsor 6  R.  I.  4-53 43. 

Kennebec  Co.  v.  Augusta  Ins.  Co 6  Gray,  204 283 

Kennedys.  Brent 6  Cr.  187 125. 

V.  Knight 21  Wis.  340 49,  65. 

Kentucky*.  Bassford 6  Hill,  527 10. 

V.  Dennison,  Gov.  of  Ohio.. 24  How.  66 20,  219,  220,  221,  244. 

Kermott  «.  Ayer 11  Mich.  181 122. 

Kerr©.  Kerr 41  N.  Y. (2 Hand,) 

272 182. 

©.  Moon 9  Wheat.  565 27,  190,  208,  209,  210, 

251,  252,  264. 

Kettering  v.  Jacksonville 50  111.  39 314. 

Kidder  v.  Packard 13  Mass.  81 128. 

Kilgore  v.  Dempsey 25  Ohio  St.  413  .  .82. 

Kill  ©.  HoUister 1   Wilson,  (Eng.) 

129 855.  -<^ 


\ 


CASES    CITED.  XXXV 

Kimbro  v.  Bank  of  Fulton 49  Geo.  419 174. 

King,  The  v.  Johnson 6  East,  583 141,  143. 

Kingv.  Vance 46  Ind.  246 101,  126. 

«.  Wilson 1  Dill.  555 30. 

Kinney  v.  Commonwealth 6   The   Reporter, 

738 178. 

Kinnier  v.  Kinnier 45  N.  Y.  535 90. 

Kirkman  v.  Hamilton 6  Pet.  20 67. 

Kirkpatrick  v.  Taylor 10  Rich.  L.  393  ..252. 

Kittredge  v.  Emerson 15  N.  H.  227 94. 

Klinck  V.  Price 4  West  Va.  4 46. 

Kling«.  Sejour 4  La.  Ann.  128. ..190. 

Knapp  V.  Abell i 10  Allen,  485  ....97. 

Knowles  v.  Gas  Light  &  Coke  Co 19  Wall.  58 103. 

Koble  T).  The  People 85  111.  336 154. 

Kruse  v.  Kruae 25  Mo.  68 180. 


Lafayette  Ins.  Co.  v.  French 18  How.  404 88, 102,  112,  282,  285 

287,  357. 

Lagrave's  Case 14  Abb.  Pr.  (n.  s.) 

833 223. 

Laird  v,  Dickerson 40  Iowa,  665 125. 

Lampson  v.  Arnold 19  Iowa,  479 70. 

Land  v.  Land 14  Sm.  &  M.  99  ..189. 

Lanet).  Vick 8  How.  464 85. 

Lanfear  ®.  Sumner 17  Mass.  100 69. 

Langdon  v.  Goddard 2  Story,  267 :  264,  265. 

B.Potter 11  Mass.  313 251. 

Langlej  V.  Perry 2  Nat.  Bank.  Reg. 

180 329. 

LanUBseec.  Barker 3  Wheat.  101 72. 

Lapham  v.  Olney 5  R.  L  413 209. 

Larkin  v.  Wilson 106  Mass.  120. ...129. 

LaterettD.  Cook 1  Iowa,  1 120,  122. 

Lathrop  v.  Union  Pac.  R.  R.  Co 1  McArthur,  234  .281. 

Latimer  v.  Union  Pac.  R.  R.  Co 43  Mo.  105 104,  201,  207,  209. 

Latinet).  Clements 3  Kelly,  426 258. 

Lauman  v.  Des  Moines  Co 29  Iowa,  310 328. 

Lawrence  c.  Bassett 5  Allen,  140 63. 

V.  Jarvis 33  111.  304 22,  88. 

«.  Lawrence 3  Barb.  Ch.  71...260. 

Lazier  t).  Wescott 26  N.  Y.  146 147. 

Le  Barron  v.  Le  Barron 35  Vt.  865 179. 

Le  Breton  0.  Nouchet 3  Mart.  60 192. 

Lee  7).  Selleck 88  K  Y.  615 51,  83. 

Lefflngwell  ».  Warren 2  Black.  599 85,86,  172. 

Leggv.  Legg 8  Mass.  99 118. 


XXXVl  CASES    CITED. 

Leigh  tone.  Kolsey 57  Maine,  85 826,827. 

Leland  v.  Manning 4  Hun,  7 200. 

p.  Wilkinson 6  Pet  817 114,  117,  121. 

Leonard  v.  New  Bedford 16  Gray,  292 204. 

LeRoy  p.  Beard 8  How.  451 25,  53. 

T.  Crowninsliield 2  Mas.  151 172. 

Leverick  e.  Adams 15  La.  Ann.  310.-268. 

Levy  V.  Levy 78  Penn.  St.  507-.46,  48.  49,  65. 

Lewis  «.  Darling 16  How.  1 212. 

r.  Doolittle 7  John.  46 254. 

t).  Headley 36  111.  433 82. 

«.  McFarland 9  Cr.  151 259,  260. 

«.  Sutliff 2  G.Greene,  186.114. 

Lexingtons.  Milton 12  B.  Mon.212...286. 

Libbey  v.  Hodgdon 9  N.  H.  394 280,  282. 

License  Cases 5  How.  504 246,314. 

License  Tax  Cases 5  Wall.  462 314. 

Lickbarrow  t).  Mason 2  T.  R.  63,  and  2 

Smith's  L.C.1147.71. 

Lincoln  v.  Battelle 6  Wend.  475 171, 175. 

u.  Tower 2  McL.  473 23.24,92,124,125,126. 

Lindsay*.  Hill 06  Maine,  212 S3. 

Lindsey  p.  Miller 6  Pet.  666 174. 

Linseed,  Bags  of 1  Black,  108 302. 

Lionberger  c.  Rouse 9  Wall.  468 323,324. 

Livingston  v.  Jeflferson 1  Brock.  203 140,  141,  209,  243. 

V.  Mayor  of  N.  Y 8  Wend.  85 19. 

«.  Smith 5  Pet.  89 125. 

V.Story 9  Pet.  632,  12  Id. 

339,  13  Id.  359.35,  40. 

Lloyd  ».  Perry 32  Iowa,  144 175. 

Lonsdale  v.  Brown 4  Wash.  C.  C.  86  .10. 

Loomist).  Farnum 14  N.  H.  119 256. 

Loring  r.  Marsh 2  Cliff.  311,  469. .31. 

Lorman  ».  Benson 8  Mich.  18 33. 

U.Clarke 2  McL.  568 29,34 

Lottawanna,  The 21  Wall.  558 303,  304,  809. 

Louisville,  Cin.  &  Charl.  R.  R.  Co.  t>. 

Letson 2  How.  497 190. 

Love  7).  Cherry 24  Iowa,  204 186,  187. 

Loving  t).  Pairo 10  Iowa,  282 204,  208. 

Low  V.  Andrews 1  Story,  38 60. 

V.  Bartlett 8  Allen,  259 250,  256,  257. 

Lowe  V.  Lowe 40  Iowa,  223 107. 

Lowiy  ?!.  West.  Bank  of  Geo 7  Ala.  120 61. 

Loyd  V.  Reynolds 29  Ind.  299 145. 

Lucas  V.  Tucker 17  Ind.  41 209. 

Luther  v.  Borden 7  How.  1 1,  20,  85. 

Lyman  v.  Brown 2  Curt.  559 145. 

Lyon  V.  Mcllvaine 24  Iowa,  9 70. 


CASES    CITED.  XXXVU 

M. 

MacGregor  ij.  MacGregor 9  Iowa,  65 312. 

Mackay  v.  Gordon 34  JST.  J.  289 122. 

Mackey  «.  Coxe 18  How.  100 2o4,  255,  363. 

Maguire  v.  Maguire 7  Dana,  181 178. 

V.  Piugree 30  Maine,  508 82. 

Mahler  V.  Norwich  «&N.Y. Trans.  Co... 35  N.  Y.  352 335,  338. 

Mahurin  v.  Bickford 6  N.  H.  507 116. 

Mallettt).  Dexter 1  Curt.  178 338. 

Maltby  v.  Reading  &  Col.  R.  R.  Co 52  Penn.  St.  140.. 275. 

Manchester,  In  re 5  Cal.  237 223,224. 

Manley  v.  Manley 3  Pinn.  390 179,  180 

Mann  «.  ^tna  Ins.  Co 38  Wis.  140  &  40 

Id.  549 89. 

Manro  v.  Almeida 10  Wheat.  473 304. 

Marbury  v.  Madison 1  Cr.  166 3. 

Marine  Bank  of  Chicago  t).  Wright..  .48  N.  Y.  1 71. 

Marsh  v.  Putnam 3  Gray,  551 828. 

Marshall  v.  Bait.  &  Ohio  R.  R.  Co 16  How.  314 190. 

V.  Grimes 41  Miss.  27 348. 

Martin  v.  Mobile  &  Ohio  R.  R.  Co 7  Bush,  116 289,  290. 

«.  Potter 11  Gray,  37 44. 

V.  Waddell 16  Pet.  367 334,385. 

Martina  v.  International  Life  Ins.  So... 53  N.  Y.  339 282. 

Marx  «.  Fore 51  Mo.  69 90,  102. 

Mason  v.  Haile 12  Wheat.  370. ...76,  79,  80. 

11.  Lawrason 1  Cr.  C.  C.  190  ...18,  112. 

V.  Wash Breese,  16 120. 

Massie^.  Watts.. 6  Cr.  148 37,43,213. 

Mathers.  Bush 16  John.  233 328. 

Mathuson  v.  Crawford 4  McL.  540 46. 

Maxwell  t).  Campbell 45  Ind.  360 267. 

U.Stewart 22  Wall.  77  &  21 

Id.  71 107,127. 

Mayberry  v.  Concord  R.  R.  Co 47  N.  H.  391 1.56. 

Mayer?).  Hellman 1  Otto,  496 3.S0. 

Mayhew  «.  Thatcher .6  Wheat.  129. ...88,  114,  117. 

Mayor,  The,  v.  Lord 9  Wall.  409 16. 

McCarthy  v.  Chi.  R.  I.  &  P.  R.R.  Co.. .18  Kan.  46 156,  160,  161. 

McClerry  «.  Matson 2  Ind.  79 200. 

McClintick  v.  Cummins 3  McL.  158 47. 

McClung  V.  Silliman 6  Wheat.  598 15,  84,  173. 

McClunyu.  Silliman 3  Pet.  270 84. 

McClure'B.  Bates 13  Iowa,  77 250,  251. 

McComber  «.  Jaffl-ay 4  Gray,  82. 130. 

McCord  I'.  Woodhull 27  How.  Pr.  54...  176. 

McCormick  v.  Penna.  Cent.  R.  R.  Co,-.49  N.  Y.  303 283. 

ij.  Sullivant 10  Wheat.  192 190,208,310. 

McCracken  v.  Hayward 6  How.  603 79. 


XXXVni  CASES    CITED. 

McCready  e.  Virginia 4  Otto,  391 384. 

McCulloch  V.  Maryland 4  Wheat.  316 10,  324,  825 

t?.  Norwood 58N.  Y.  562  &  4 

Jones  &  S.  188.34,  119. 

McCutchenc.  Marshall 8  Pet.  220 37. 

McDaniel  v.  Chi.  &  N.  W.  R.  R  Co... .24  Iowa,  412 47,  51,  59. 

McDermott  ».  Clary 107  Mass.  501 102. 

McDougaldtJ.  Carey 88  Ala.  320 33. 

-AlcDurfee  v.  Port.  &  Koch.  R  R  Co.. .52  N.  H.  430 277. 

McEIrath  v.  Pitts.  &  Steub.  R  R  Co... 55  Penn.  St.  189.. 212.  279,  293. 

McElmoyle  c.  Cohen 13  Pet  312 171,172,250. 

McFall  V.  Commonwealth 2  Met.  (Ky.)  394.. 343. 

McFee  v.  South  Car.  Ins.  Co 2  McCord,  503  ...56. 

McGee  v.  Mathis 4  Wall.  143 75,  76,  77. 

McGiflfert  u.  McGiffert 31  Barb.  69 180. 

McGill  0.  Armour 11  How.  142 271. 

McGilvray  t).  Avery 30  Vt.  538 147. 

McGoon  V.  Scales 9  Wall.  23 208. 

McGruder  «.  Bank  of  Washington 9  Wheat.  598 64. 

McGuire  v.  Gallagher 2  Sandf.  402 88. 

Mcllvaine  v.  Coxe 4  Cr.  209 10. 

Mclntire  «.  Parks 3  Met.  207 46,59. 

McJilton  t).  Love 13  111.487 146. 

McKay  B.  Funk 37  Iowa,  661 327. 

McKeen  D.  Delancy 5  Cr.  22 37. 

McKenna  v.  Fiske 1  How.  241 140. 141. 142, 143, 155. 

McKim  t).  Willis 1  Allen,  512 132. 

McKowen«.  McGuire 15  La.  Ann.  637..  188. 

McLaurine  v.  Monroe 30  Mo.  462 101. 

McLean  B.  Lafayette  Bank 8  McL.  622 212. 

V.  Meek 18  How.  16 258. 

McMicken  c.  Webb 11  Pet  25 31. 

McMillan  v.  McNeill 4  Wlieat  209 132,  327,  328. 

McNiel,  Ex  parte 13  Wall.  236 15,  309,  315,  320,  821. 

McNiel  B.  Holbrook 12  Pet  48 30. 

McNutttJ.  Bland 2  How.  9 263,881. 

McQueen  v.  Middletown  Manf.  Co 16  John.  5 283. 

McVicker  B.  Beedy 31  Maine,  314 102. 

Means  «.  Hapgood 19  Pick.  105 204. 

MearstJ.  Sinclair 1  WestVa.  185. ..267. 

Medway  v.  Needham 16  Mass.  157 7, 177, 178,  192. 

Meekin  v.  Creditors 19  La.  Ann.  497  & 

3     Nat     Bank. 

Reg.  126 329. 

Melhop  V.  Doane 31  Iowa,  397 100.  101. 

Memphis  «.  Overton 3  Yerg.  387 349,351. 

Merchants'  Ins.  Co.c.  DeWolf..»! 33  Penn.  St  45. ..90. 

Meredith  v.  Hinsdale 2  Caines.  362 25. 

Merrill  v.  George 23  How.  Pr.  331. .26. 

Marvin  v.  Kumbel 23  Wend.  293  ....97. 


CASES    CITED.  XXXIX 

Mewsterc.  Spalding 6  McL.  24 18,113 

Middleton  v.  McQrew 23  How.  45 37 

Middough  v.  St.  Jos.  &  Den.  R.  R.  Co.. 51  Mo.  520 «& 3  Am. 

R.W.  Rep.  261.27. 

Miles  «.  Caldwell 2  Wall.  35 84. 

B.Collins 1  Met.  (Ky.)  308.. 33,  100 

Miller  v.  Brenham 68  N.  Y.  83 171. 

•P.Davison 31  Iowa,  435 130. 

c.  Dungan 36  K  J.  Law,  21..  102,  125. 

V.  Hoe 2  Cr.  C.  C.  622. ..129. 

«.  Jones 26  Ala.  247 249. 

V.  Southwest.  R.  R.  Co 55  Geo.  143 158. 

©.Tiffany 1  Wall.  298 46,65. 

Mills  V.  Duryee.. 7  Cr.  481 92,  106,  107,  117. 

V.  Thornton 26  111.  300. 194,  197,  204. 

Milne  «.  Moreton 6  Binn.  365 5,  69. 

V.  Van  Buskirk 9  Iowa,  558 88,  105. 

Milnor  v.  N.  Y.  &  N.  H.  R.  R.  Co 53  K  Y.  363 282,  289 

Milwaukee  &  St.  Paul  R.  R.  Co.  v.  Mil. 

&  Minn.  R.  R.  Co 20  Wis.  165 296. 

Miner  B.Austin 45  Iowa,  221 249. 

Mississippi  v.  Johnson 4  Wall.  475 1. 

Miss.  &  Mo.  R.  R.  Co.  B.Ward 2  Black,  485 337. 

Missouri  B.  Iowa 7  How.  660  &  10 

Id.  1 20. 

Mitchel  B.  U.  S 9  Pet.  712 214. 

Mitchell  B.  Bunch 2  Paige,  606 146. 

B.Gray 18  Ind.  123 113. 

B.  Harmony 13  How.  115 141,  143. 

Molyneux  v.  Seymour 30  Geo.  440 101. 

Monroe  B.  Douglass 5  N.  Y.  447 34,  120,  209. 

Moore  v.  Chi.  R.  I.  &  Pac.  R.  R.  Co..  ..43  Iowa,  385 125,  129. 

©.  Clopton 22  Ark.  125 47. 

V.  Gwynn 5  Ired.  187 120. 

B.  Lobbin 26  Miss.  304 174. 

V.  Parker 25  Iowa,  355 88. 

B.  Robbins 6  Otto,  530 214. 

Morgan  v.  Curtenius 20  How.  1 86,  115. 

B.King 30  Barb.  9 33. 

B.  New  Orleans  R.R.  Co. 2  Woods,  244 51,  208. 

B.  Parham 16  Wall.  471 318. 

Morrill  B.  State 38  Wis.  428 311. 

Morrison  b.  Burns 40  Mo. 491 .305 

Morrissey  B.  People 11  Mich.  327 234 

MorsemauB.  Younkin 27  Iowa,  350 322,  323. 

Morton  v.  Skinner 48  Ind.  123 223. 

t).  Smith 2  Dill.  316 208,  209, 

B.  Valentine 15  La.  Ann.  150. .90,  91. 

Moses  Taylor.  The 4  Wall.  411 11,  13,301,303. 

MostynB.  Fabrigas Cowp.  161 141,  143. 


Xl  OASES    CITED. 

Mott «.  Coddlngton 1  Robert.  207  ....213. 

Moultrie  t).  Hunt 23  N.Y.  804 6,  194,200. 

Mowry  t).  Crocker 6  Wis.  826 204. 

Mud  Creek  Draining  Co. «.  State 43  Md.  230 285. 

MuUer  e.  Dows 4  Otto,  444 212.  279,291,  293. 

Mumford  v.  Wardwell 6  Wall.  423 835. 

Mummae.  Potomac  Co 8  Pet.  281 78. 

Munn  V.  Illinois 4  Otto,  113 246,  321 

Murray  v.  Charleston 6  Otto.  432 80,  202,  203,  205. 

V.  Gibson 15  How.  421 174. 

«.  Marsh 2  Hayw.  (N.  C) 

290 18,112. 

Musson  tJ.Lake 4  How.  262 61. 

Myers  v.  San  Francisco 42  Cal.  215 157. 


Nash  u.Tupper 1  Caines,  402 171. 

Nashville  &  Chat.  R  R.  Co.«.  Eakin--6  Cold.  582 156. 

National  Bank  v.  Commonwealth 9  Wall.  353 322,  323. 

V.  Nichols 4  Biss.  315 280. 

National  Bank  of  Mich.  v.  Green 33  Iowa,  140 61,  62. 

National  Mut.  Fire  Ins.  Co.  v.  Pursell.lO  Allen,  231 283. 

National  State  Bank  of  Osk.t;.  Young.2.')  Iowa,  311 322. 

Nations  t?.  Johnson 24  How.  195 87,  93. 

Naylorc  Moffat 29  Mo.  126 252. 

t.  Moody 2  Blackf.  247  ....252. 

Neale  e.  De  Garay 7  T.  R.  243 141,  143. 

Nelsons.  Toterall 7  Leigh,  201 8. 

Nesmithr.  Sheldon 7  How.  812 37.84. 

Neves  v.  Scott 13  How.  268 84. 

New  Albany  v.  Meekin 8  Ind.  481 320. 

New  Albany  &  Salem  R.  R.  Co.  v.  Til- 
ton 12  Ind.  3 156. 

Newburg  Petroleum  Co.  v.  Weare 27  Ohio  St.  343.. 289. 

Newby  v.  Von  Oppen L.  R.  7  Q.  B.  293..282. 

Newcomb  «.  Peck 17  Vt.302 92. 

Newell  V.  Coit 1  Ohio.  519 209. 

V.  G.  W.  Ry.  Co 19  Mich.  336 281. 

«.  Hayden 8  Iowa,  140 53. 

New  Jersey  v.  New  York 3  Pet.  461  &  5  Id. 

284 20. 

V.  Wilson 7  Cr.  164 75. 

New  Jersey  Steam  Nav.  Co.  e.  Mer- 
chants' Bank 6  How.  844 304,806. 

Newman*.  Kershaw 10  Wis.  333 65. 

«.  Willett 52  111.98 265. 

Newport  ».  Taylor 16  B.  Mon.  699.. .350. 

Newton  v.  Cocke 5  Eng.  169 264. 


CASES    CITED.  xli 

New  York  Dry  Dock  Co.  v.  Hicks  ...5  McL.  Ill 290. 

New  York  &  Erie  R.  R.  Co.  v.  Shepard.5  McL.  455 190. 

New  York  Floating  Derrick  Co.  v.  New 

Jersey  Oil  Co 3  Duer,  G48 290. 

Niblet  ®.  Scott 4  La.  Ann.  245  ...18,  94. 

Nichols  tJ.  Cornelius 7  Ind.  611 223. 

«.  Levy 5  Wall.  433 85. 

Noonan  v.  Bradley 9  Wall.  394 252. 

Norris  v.  Beach 2  John.  294 20. 

©.Harris 15  Cal.  226 83,34. 

V.  Mumford 4  Mart.  20 69. 

«.  State 33  Miss.  373 237. 

North  Bank  d.  Brown 50  Maine,  214 146. 

North.  Cent.  Ry.  Co.  v.  Scholl 16  Md.  331 242. 

North.  Ind.  R.  R.  Co.  v.  Mich.  Cent. )  15  How.  223  &  5  )  31,  32,  141,  207,  208, 

R.  R.  Co i"    McL.  444 \     212. 

Northwestern  Fertilizing  Co.  v.  Hyde  )  11     Chi.    Legal )  ^  .^  „  ._ 

Park \    News,  81 j-^*^  ^4'- 

Norwood,  ExpaHe 3  Biss.  504 296. 

Norwood  V.  Cobb ,.20  Tex.  588 90. 

Nowler«.  Coit 1  Ohio,  236 201,207,209. 

Noyes,  In  re 17  Alb.  Law  Jour. 

407 227. 

Nunni).  Sturges 22  Ark.  389 99. 

Nye  B.  Liscombe 21  Pick.  263 128. 


0. 

Oakley  «.  Aspinwall 4  N.  Y.  514 97. 

Ockermann  v.  Cross 54  N.  Y.  29 194, 198,  204. 

Octavia,  The 1  Wheat.  24 304. 

OffuttB.  Flagg 10  N.  H.  50 68. 

Ogden  V.  Lund 11  Tex.  688 351. 

D.Saunders 12  Wheat.  213.... 52,  76,  80,  132,  133, 

134,  138,  327.  328. 

Ohio  V.  Hinchman 27  Penn.  St.  479.. 120. 

Ohio  &  Miss.  R.  R.  Co.  ».  McClelland.. 25  HI.  140 156. 

V.  Wheeler 1  Black,  286 190,  286,355. 

Olcott  ».  Tioga  R.  R.  R.  Co 20  N.  Y.  210 176. 

Olivier  «.  Townes 2  Mart.  (n.  s.)93..5,  201. 

Ordway  v.  Conroe 4  Wis.  45 99. 

Orleans,  Steamboat,  ■».  Phoebus 11  Pet.  175 303. 

Orman  «.  Neville 14  La.  Ann.  393.-91. 

Orvis  «.  Powell 2  Chi.  Law  Jour. 

190 35,36,37,84. 

Osborn  v.  Adams 18  Pick.  245 138,  139. 

V.  Bank  of  U.  S 9  Wheat.  738  ..._20,  263,  322. 

Owen«.  McKean 14  HI.  459 144. 

Owings -0.  Hull 9  Pet.  607 34,  114. 


Xlii  CASES    CITED. 

P. 

Paine  v.  Lake  Erie  &  Louis.  RR.  C0...8I  Ind.  283 292. 

Palmer  v.  Yarrington 1  Ohio  SL  258 47. 

Parham  v.  PuUiam 5  Cold.  497 81. 

Parker  t>.  Hotchkiss 1  Wall.  Jr.  269  ...26. 

V.  Kane 22  How.  1 87. 

Parsons  v.  Bedford 8  Pet.  438 29,  39,  307. 

V.  Lyman 20  N.  Y.  103 190,  197. 

Partce  v.  Silliman 44  Miss.  72 190,  194. 

Passenger  Cases 7  How.  288 310,313,314,815,816, 

317. 

Patchen  ».  Wilson 4  Hill,  57 261. 

Patterson, /»  re 1  Nat.  Bank.  Reg. 

Supplement,  27.326,  327. 

Patterson  t>.  Kentucky 11  Chicago  Legal 

News,  183 246,247. 

Paul  ©.  Virginia 8  Wall.  168 28.5,286.288,313. 

Paulding  v.  Hudson  Manf.  Co 2  E.D.  Smith,  38.283. 

PawletB.  Clark 9  Cr.  292 75. 

Payne  e.  Hook 7  Wall.  425 38,  40,  41,  355. 

Payson®.  Payson 1 34  N.  H.  518 181. 

Peale  ».  Phipps 14  How.  368 12,297,298. 

Pearsall  v.  Dwight 2  Mass.  84 50,  118, 168. 

Pease  v.  Howard 14  John.  470 172. 

p.  Peck 18  How.  595 86. 

Peck  V.  Jenness 7  How.  625 16.  42. 

Pecks  V.  Mayo 14  Vt.  33 51,  65.  82. 

Pennington  B.  Gibson 16  How.  65 34,87,88,93,210,264. 

Pennoyer  c.  NeflF. 5  Otto,  714 10,  11,  100,  101.  102, 

112,  124,  126,  167. 

Pennsylvania  p.  Ravenel 21  How.  103 188. 

V.  Wheeling  Bridge  Co.  .13  How.  518 40,  215, 310,  348. 

Pennsylvania  Co.  c.  Sloan 10  Chicago  Legal 

News,  881 176. 

Pennsylvania  R  R  Co.  v.  Riblet 66  Penn.  St.  164..  156. 

Penobscott  R  R  Co.  v.  Bartlett 12  Gray,  244 204. 

Pensacola  Tel.  Co.  v.  West.  Union  Tel.  1 6  Otto,  1,  and  2 )  4,  10, 11,  12,  288,  309, 

Co i"    Woods,  643  ..  j     310,311. 

Pensenneau  v.  Pensenneau 22  Mo.  27 300. 

People  V.  Babcock 11  Wend.  587 349.  350. 

t.  Brady 56  N.  Y.  182 222.  223,  225. 

V.  Burke 11  Wend.  129 229,234. 

V.  Cent.  R.  R.  Co.  of  N.  J 48  Barb.  478 346. 

V.  Commissioners,  etc 23  N.Y. 224  &  242.202.  204,205,206,818. 

V.  Commissioners,  etc 4  Wall.  244 323. 

«.  Commissioners,  etc .58  N.  Y.  242 318. 

V.  Commissioners,  etc 47  N.  Y.  501 287. 

V.  Commonwealth 4  Wall.  244 322. 

t>.  Curtis 50  N.  Y.  321 226. 


OASES    CITED.  xHil 

People  V.  Dawell , 25  Mich.  247 90,  181. 

V.  Eastman 25  Cal.  601 202.  275. 

t).  Folsom 5  Cal.  373 29,34. 

C.Gardner 2  John.  477 229,233.284. 

V.  Gilbert 18  John.  228 174. 

V.  Kelly 38  Cal.  145 216,  244. 

«.  Lambert 5  Mich.  349 122. 

V.  Longhbridge 1  Neb.  11 229,  238. 

«.  Hosier 2  Park.  Cr.  Cases, 

195 228 

©.Murray 5  Park.  Cr.  Cases, 

577 216,245. 

V.  N.  Y.«fe  Staten  Is.  Ferry  Co... 68  N.  Y.  71 335. 

V.  Rensellaer  &  S.  RR.  Co 15  Wend.  114.... 285. 

V.  Roper 35  N.  Y.  629 287. 

».  Schenck 2  John.  479 229,233. 

V.  Society  for  Propagating  the 

Gospel 1  Paine,  653 285. 

V.  St.  Louis 10  111.  350 321. 

V.  Tibbetts 19  N.  Y.  523 334,  335. 

V.  Williams 24  Mich.  156 229,  230,  231. 

People's  Ferry  Co.  v.  Beers 20  How.  393 304. 

Pepoonti.  Jenkins 2  John.  Cases,  119.112,  120. 

Pereles  v.  WatertoAvn 6  Biss.  79 174. 

Perkins  «.  Williams 2  Root.  462 252. 

Perry  Manf.  Co.  ■».  Brown 2  Wood.  &  M.  450.208. 

Person  t).  Grier 66  N.  Y.  124 26. 

Petchell  V.  Hopkins 19  Iowa,  531 175. 

F&tzev,  JEx  parte 28  Ind.  450 223. 

Phelps  «.  O'Brien 2  Dill.  518 37,  356. 

Phila.  Loan  Co.  v.  Towner 13  Conn.  249 48,  49.  65,  83. 

Phila.  &  Wil.  R.R.  Co.  v.  Maryland. ..10  How.  376 292. 

Phila.  Wil. «&  Bait.  R.  R.  Co.?).  Howard.  13  How.  307 114. 

V.  Quigley  .21  How.  202 142,  143. 

Phillips  •».  Phillips 22  Wis.  256 181. 

V.  Bloomington 1  G.  Greene,  498.. 349. 

Phinney  «.  Baldwin 16  111.  108 50,58. 

Piatt  «.  Oliver 2  McL.  268 23. 

Pickard  v,  Bailey 26  N.  H.  152 120,  121. 

Pickering  «.  Fisk 6  Vt.  102 5,54,  55.  50,  96,  154, 

156,  340. 

Picquet«.  Swan 3  Mas.  469 251. 

Pierce  i>.  Reed 2  N.  H.  359 95. 

Pine  Grove  «.  Talco It 19  Wall.  666 85. 

Piponi;.  Pipon 1  Ambl.  26 201. 

Piqua  Branch  Bank  c  Knoop 16  How.  369 34,37,  75,  79. 

Pittsburgh  «.  First  Nat.  Bank 55  Penn.  St.  45... 322. 

Planters'  Bank  v.  Sharp 6  How.  301 79. 

Plestoro  V.  Abraham 1  Paige,  236 138. 

Plumleigh«.  Cook 13  111.669 33. 


Xliv  OASES    CITED. 

Plymouth,  The 8  Wall.  20.. 801,  805. 

Poe  V.  Duck 5  Md.  1 132,  135. 

Polk  t>.  Wendal 9  Cr.  87 80,  87. 

Pollard  e.  Baldwin 23  Iowa,  828 107. 

V.  Dwight 4  Cr.  421 124,  359. 

V.  Hagan 8  How.  212 334,  835. 

Pomeroy  t>.  Ainsworth 22  Barb.  118 50,  51. 

V.  Manhattan  Life  Ins.  Co.... 40  111.  398 283. 

Pond  e.  Makepeace 2  Met.  114 252. 

Pondsford  v.  Johnson 2  Blatch.  51 192. 

Pope  V.  Nickerson 8  Story,  466 46,  82. 

Porter®.  Heydock 6  Vt.  874 255. 

Potter©.  Hiscox 80  Conn.  508 268. 

V.  Titcomb 22  Maine,  800 265. 

Poultneyt).  Lafayette 12  PeL  473 40. 

Powell  V.  De  Blane 28  Tex.  66 90. 

Powers?.  Hathaway 48  Barb.  214 171. 

Pratt  V.  Adams 7  Paige.  615 81. 

V.  Chase 44  N.  Y.  597 828. 

V.  Northam 5  Mas.  95 40. 

Prentiss  «.  Barton 1  Brock.  C.C.  889. 1S6,  190. 

Preston,  Jn  re 6  Nat.  Bank.  Reg. 

545 827. 

Price  V.  Hickok 39  Vt.  392 100. 

V.  Johnston 1  Ohio  St  390  ...207,  209. 

«.  Morris 5  McL.  4 263. 

Prigg  V.  Commonwealth 16  Pet.  539 220. 

Prince©.  Bartlett 8  Cr.  431 136. 

Probate  Courts  Kimball 42  Vt.  320 248,  250,  254. 

V.  Matthews 6  Vt.  269 109,  255. 

Proctor  u.  Moore 1  Mass.  198 132. 

Protector,  The 12  Wall.  700 3. 

Providence  Bank  v.  Billings 4  Pet  514 75. 

Pry ce  v.  Security  Ins.  Co 29  Wis.  270 283. 

Pugh«.  Bussel 2Blackf.  394....1§3. 

Purdy  V.  N.  Y.  &  N.  H.  R.  R.  Co 61  K  Y.  453 247,  293,  294. 

Putnam  v.  Putnam 8  Pick.  433 178, 182,  192. 


Q 

Quincy  Coal  Co.  v.  Hood 77  111.  68 158. 


R 

Rabun  v.  Rabun 15  La  Ann. 471 -..198. 

Racine  &  Miss.  R.  R.  Co,  v.  Farmers' 

Loan  &  Trust  Co 49  111.  331 291.  292. 

Rafael  v.  Verelst 2Wm.Black.1055.141. 


CASES    CITED.  xlv 

Railroad  Bank  v.  Evans '62  Iowa,  203 123,  123. 

Railroad  Co.  v.  Barron 5  Wall.  90 343. 

C.Harris 13  Wall.  65 277,378. 

«.  Husen 5  Otto,  465 9,  10,  246,  347,  810, 

311,  313; 

W.Jackson 7  Wall.  363 303,375,330. 

V.  Pennsylvania 15  Wall.  300 275. 

V.  Steam  Tow  Boat  Co.. ..23  How.  215 303. 

V.  Ward 3  Black.  485 341. 

t).  Whiton 13  Wall.  370 355. 

Randall  v.  Brigliam 7  Wall.  523 31,  85. 

Rankin  v.  Goddard 54  Maine,  38,  and 

55  Id.  389 103,105. 

Rape  V.  Heaton 9  Wis.  301 101,  103,  104. 

Rathbun  v.  North.  Cent.  R.  R.  Co 50  N.  Y.  656 176. 

Ray  i;.  Underwood.. 3  Pick.  302...... 138. 

Raynham  v.  Canton 3  Pick.  393 130. 

Read  v.  Bertrand 4  Wash,  C.  C.  514. 190,  236. 

Reed  «.  BuUington 11  Nat.  Bank.  Reg. 

408 ..-.337. 

V.  Ross 1  Bald.  C.  C.  36.  .18,  94. 

V.  Taylor 33  Iowa,  309 329,  330. 

Reese  v.  Mut.  Benefit  Ins.  Co.. 23  N.  Y.  516 33. 

Beg.v.  Madge 9  C.  &  P.  39 339. 

Reid,  Ex  parte 2  Sneed,  375 307. 

Reid«.  Boyd 13  Tex.  341. 105. 

v.  Morrison 3  W.  &  S.  401 64. 

Reindeer,  The 3  Wall.  384 304. 

^ea;  ®.  Anderson 2  East,  P.  C.  773, 

0.  16,  s.  156 -...339. 

V.  Prowse ^ Ry.  &  M.  349 229. 

Rhode  Island*.  Massachusetts 13  Pet.  657 10,  30 

Rice  -c.  Houston 13  Wall.  66 263. 

Richards  «.  Dutch _ 8  Mass.  506 255,  356. 

V.  Globe  Bank... 13  Wis.  693 65. 

V.  Polgreen 13  S.  &  R.  393  ...173. 

Richardson  i>.  Burlington ..33  N.  J.  190 148,  151,153. 

V.  N.  Y.  Cent.  R.  R.  Co 98  Mass.  85 145,  156,  163. 

V.  Ver.  &  Mass.  R.  R.  Co... 44  Vt.  613 164,  278. 

Rickett  t>.  Henderson 3  Cr.  C.  C.  157  ...125. 

Rieman  v.  Shepard 27  Ind.  288 204. 

Riggs  V.  Johnson  Co 6  Wall.  166 11,  12, 15, 16. 

Riley  «.  Lamar 2  Cr.  344 133. 

V.  Moseley 44  Miss.  37 353. 

'«.  Riley 3  Day,  74 351. 

Ripple  «.  Ripple 1  Raw! e,  386 113,  130. 

Roach  V.  Chapman 33  How.  139 41,  305,  308. 

Robb  V.  Chi.  &  Alt.  R.  R.  Co 47  Mo.  540 37. 

V.  Halsey 11  Sm.  «&  M.140..60,  83. 

Robert  Fulton,  The 1  Paine,  631 338. 


Xlvi  CASES    CITED. 

Robert «.  Hodges 1  C.E.Green, 299. 105. 

Roberts  v.  Caldwell 5  Dana,  512 92. 

Robertson  «.  Crandall 9  Wend.  425 261. 

Robinson.  Ex  parte 6  McL.  355 838. 

Robinson  v.  Atl.  &  G.  W.  R.  R.  Co 06  Penn.  St  160..297. 

V.  Bland 2  Burr.  1679 8. 

V.  Campbell 8  Wheat.  212  ....25,  35,  89,  40. 

r.  Flanders 29  Ind.  10 223. 

V.  Merchants' Dispatch 45  Iowa,  470 71. 

V.  Prescott 4  N.  H.  450 116. 

Roche  «.  Washington 19  Ind.  58 177. 

Rockville  &  Wash.  Turnpike  Road  Co. 

V.  Andrews 2  Cr.  C.  C.  451  ...120. 

Rogers  v.  Gwyn 21  Iowa,  58 103,  106. 

V.  Odell 39  N.  H.  417 14.5. 147. 

V.  Rogers 15  B.  Mon.  292.. .105. 

Roop  V.  Clark 4  G.  Greene,  294..  114. 

Roosar.  Crist 17  111.450 47. 

Root  T.  Brotherson 4  McL.  230 208. 

Rose©.  Himely 4  Cr.  269 101. 

V.  Thames  Bank 15  Ind.  292 61. 

Ross  V.  Duval 13  Pet.  45 84. 

V.  Page 6  Ham.  (Ohio)  166-349. 

V.  State ,...55  Geo.  192 216. 

Ruggles  B.  Keeler 3  John.  261 66,  171,  172. 

Runlle  V.  Del.  &  Rar.  Canal  Co 1  Wall.  Jr. 275  ...140. 

Runyan?j.  Coster 14  Pet.  122 290. 

Reese  B.  Mut.  Benefit  Ins.  Co 23  N.  Y.  516 33. 

Rush®.  Rush 46  Iowa,  648 182. 

Ru.ssel  ?).  Buck 14Vt.  147 64. 

Russell  ?).  Southard 12  How.  139i 35. 

Ryan  ».  Bindley 1  Wall.  66 30,85. 

V.  Clanton 8  Strob.  413 68. 


S. 

Sabine  v.  Fisher 37  Wis.  376 264. 

Sampson  ©.Burton 4  Nat.  Bank.  Reg. 

1- 326. 

Samuel,  The 1  Wheat.  9 404. 

Sanderson©.  Bradford 10  N.  H.  260 204 

Sandford  ©.  Chase 3  Cow.  381 26. 

V.  McCreedy 28  Wis.  102 261. 

Sangamon  «&  Morgan  R.  R.  Co.  v.  Mor- 
gan Co 14  111.  163 205. 

Satterlee  ©.  Matthcwson 2  Pet.  880 76,  77,  78. 

Saul  V.  His  Creditors 5  Mart.  (n.  s.)  569.4. 

Saunders  v.  Williams 5  N.  H.  213 204 

Savage  ©.  Marsh 10  Met.  595 134 


CASES    CITED.  xlvii 

Savary  v.  Savary 3  Iowa,  271 4(5,  68. 

Sawyer  v.  Thompson 24  N.  H.  510 128. 

Sayre  v.  Helme CI  Penn.  St.  299. .252. 

Schollenberger,  Ex  parte 6  Otto,  369  ..1...  18. 

Schonwald  v.  Schonwald 2  Jones'  Eq.  367.  .181. 

Schwinger  v.  Hickok 53  N.  Y.  280 22,  23. 

Scofleld  i).  Day 20  John.  102 58. 

Scott  V.  Blanchard 8  Mart.  (x.  8.)  303.112. 

V.  Cleveland 3  T.  B.  Mon.  62.. 116. 

©.Jones 5  How.  343. 1,  20. 

V.  Noble 72  Ponn.  St.  115.. 102. 

V.  Seymour 1  Hurl.  &  C.  219.141, 143. 

Scoville  i?.  Canfield 14  John.  338 4,52,148,227.291,340. 

Scribner  t).  Fisher 2Gray,43 132. 

Scudder  v.  Union  Nat.  Bank 1  Otto,  406 46,  50,  51,  52,  60,  171. 

Seaver  ».  Robinson 3  Duer,  622 26. 

Secombe  v.  Railroad  Co 23  Wall.  108 85. 

Secrist  c.  Green 3  Wall.  744 208,  210,  264. 

Security  Ins.  Co.  v.  Taylor 2  Biss.  446.. 252. 

Sedgwick  v.  Menck 1  Nat.  Bank.  Reg. 

204 329. 

V.  Place 1  Nat.  Bank.  Reg. 

204 329. 

Seevers  v.  Clement 28  Md.  426 145. 

Selectmen  of  Boston  v.  Boylston 2  Mass.  384 109,  255. 

Sell  «.  Miller 11  Ohio  St.  331..  .190,  209. 

Selma,  Rome  &  Dal.  R.  R.  Co.  v.  Lacey .43  Geo.  461 156,  159. 

».Tyson-48  Geo.  351 281. 

Sevier  ®.  Roddie 51  Mo.  580 101. 

Seymour  v.  Butler 8  Iowa,  304 10,  46,  47. 

Shafer  v.  Bushnell 24  Wis.  372 179,  181. 

Shaffer  v.  Bolander 4  G.  Greene,  201 .  .46. 

Shaft  V.  Phcenix  Mut.  Life  Ins.  Co 67  N.  Y.  544 360. 

Shaw  v.  Wood 8  Ind.  518 61. 

Shelby  v.  Bacon 10  How.  56 12,  338. 

V.  Guy 11  Wheat.  361.  ...30,  37,  84,  85,  175. 

Sheldon  v.  Rice 30  Mich.  296 260. 

».  Sill 8  How.  441 66. 

Shelton  v.  Marshall 16  Tex.  344 47,  90,  203. 

«.  Tiffin. 6  How.  163 106,  190. 

Sheppard  v.  Steele 43N. Y.(4  Hand)55.308. 

Sherlock  t).  Ailing 3  Otto,  99,  and  48 

Ind.  184 309.  314,  343,  344. 

Sherman  v.  Gassett 9  111.  521 83,  148,  149. 

Shields  t).  Thomas 18  How.  253 93. 

Short  «.  Trabue 4  Met.  (Ky.)  299.-46,  61. 

Shultz  V.  Pulver 3  Paige,  182 194.  201. 

Shumway  v.  Stillman 4  Cow.  292,  and  6 

Wend.  447 92.  106,  183. 

Sill  t).  Worswick 1  H.  Black.  665..  194, 195. 


Xlviii  CASES    CITED. 

Silver  Lake  Bank  v.  Harding 5  Ham.  545 116. 

Simmons  v.  CommonM'ealtli fi  Binn.  617 229. 

Simons  v.  Cook 29  Iowa,  324 122. 

Simpson  v.  State 4  Humph.  456  ...227.  229. 

Sims  c.  Hundley 6  How.  1 30. 

Sinnottu.  Davenport 22  How.  227 11,  12,314. 

Sisk  e.  Woodruff 15  111.  15 121. 

Skinner  v.  Maxwell 08  N.  C.  400 297. 

Slacks.  Qibbs 14Vt.357 148.  153,227. 

Slade  V.  Slade 58  Maine,  157.. ..181. 

Slanter  v.  Chenwith 7  Ind.  211 257. 

Slaughter©.  Commonwealth 13  Gratt.  767 286. 

Sloan  r.Waugh 18  Iowa,  224 175. 

Smith,  Ezparte 3  McL.  121 231,  222,  224,  225. 

Smith,  The  General 4  Wheat.  438 404. 

Smith  V  Boston,  C.  &  M.  R  R  Co 33  N.  H.  337 129. 

V.  Bull 17  Wend.  323. ...140,  242. 

«.  Chicago  &  N.W.  RR  Co....23  Wis.  267 204. 

«.  Godfrey 28  N.  H.  379 46,  199. 

V.  Kernochen 7  How.  198 357. 

«.  McCutcheon 38  Mo.  415 112. 

«.  Mclver 9  Wheat.  533 12,  338. 

t).  McLean 24  Iowa,  322 68. 

V.  Mead 3  Conn.  253 40,65. 

V.  Mut.  Life  Ins.  Co 14  Allen,  338 291. 

«.  Peckham 39  Wis.  414 264. 

V.  Smith '.2  John.  235 51,  64,  65,  133. 

V.  Smith 17  111.481 89. 

V.  Union  Bank  of  Georgetown. .5  Pet.  518 251. 

V.  Webb 1  Barb.  231 251,  252,  260. 

Sneed  v.  Wister 8  Wheat.  690 66,  84. 

Snelling  v.  Watrous 3  Paige,  314 222. 

Snyder  v.  Wise 10  Penn.  St.  157. .116. 

Society  for  Propagation  of  Gospel  t. 

New  Haven 8  Wheat.  464 75. 

Sohn  V.  Waterson 1  Dill.  358 172. 

Somerville  t).  Somerville 5  Ves.  751 201,  254. 

■p.  Wimbish 7  Gratt.  205 349. 

Sortwell  V.  Hughes 1  Curt.  244 59.  • 

Soule  V.  Chase 39  N.  Y.  842 132.. 

Southwest.  R  R.  Co.  -o.Paulk 24  Geo.  356 156. 

Sparks  v.  White 7  Humph.  86 252. 

Speeds.  May 17  Penn.  St.  95.. .139. 

Sprague  ».  Hartford,  Prov.  &  Fisk.  R 

R  Co 5  R  L  233 293. 

Springer®.  Foster 2  Story,  382 132.  338. 

St  Albans  v.  Bush 4  Vt.  58 18,  94. 

St  Lawrence,  The 1  Black,  522 304. 

St  Louis  V.  Wiggins  Ferry  Co 40  Mo.  580,  and  11 

Wall.  423 26,  27,  205.  318,  319. 


CASES    CITED.  xHx 

Staceyi'.  Thrasher 6  How.  44 257,258. 

Stanfield  v.  Fetters  ..  ., 7  Blackf.  558  ....91. 

Stanleys.  State 24  Ohio  St.  166  ..229,  237,  238. 

Starkweather  v.  Loomis 2  Vt.  573 116. 

Starr  v.  Pease 8  Conn.  541 179. 

State  V.  Adams 4  Blackf.  146  ....244. 

V.  Armington 17  Alb.  Law  Jour. 

451 180,182. 

t).  Bartlet 11  Vt.  650 237. 

V.  Bennett 14  Iowa,  479 229,  232. 

B.Brown 1  Hayw.  (  N.  C.) 

100 229. 

V.  Cameron 2  Finn.  490 337,  343. 

V.  Carter 3  Dutch.  499 227.240. 

V.  Circuit  Judge 33  Wis.  127 352,359. 

V.  Cummings 33  Conn.  260 33,  229. 

V.  Douglass 17  Maine,  193 229. 

B.Doyle 40  Wis.  175  &  220-288. 

sV.  Elder 54  Maine,  381. ...216,  245. 

B.Ellis ...3  Conn.  186 229,238,241. 

V.  Freeholders  of  Hudson  Co 3  Zab.  206 351. 

V.  Grady 34  Conn.  118 240,241. 

V.  Grand  Trunk  Ky.  Co 60  Maine,  176.. ..158, 160, 164,  165. 

V.  Groome 10  Iowa,  308 18G. 

B.  Hufford 28  Iowa,  391 222,225. 

B.  Independent  School  Dist 44  Iowa,  227 285. 

B.Kennedy 76  N".  C.  251 178.  192. 

B.  Knight Taylor  (N.  C.)  65.4,  227, 240,  340. 

B.  Le  Blanch 31  N.  J.  82 229. 

B.  Main 16  Wis.  398 169. 

B.  Maine  Cent.  R.  R.  Co 60  Maine,  490 164. 

B.  McBride 1  Rice,  400 244,245. 

B.  Medbury 3  R.  I.  138 334,335. 

B.  Metz 5  Dutch.  122 345. 

B.  Minnick 15  Iowa,  123 187. 

B.  Moore 26  K  H.  448 240,  341. 

B.  Mullen 35  Iowa,  199 337,  341,  342,  343. 

V.  Newman 9  Nev.  48 229. 

B.  Palmer 18Vt.  570 185. 

B.  Pike 15  N.  H.  83. 245. 

B.  Reonnals 14  La.  Ann.  276.  .229. 

V.  Seay 3  Stew.  123 229. 

B.  Simpson 45  Maine,  608 229. 

B.  Tuller 34  Conn.  280 216,244. 

B.  Underwood 49  Maine,  181 229. 

P.Williams 35  Mo.  229 229. 

B.  Wyckoff 31  N.J.Law,  65..240,  241. 

V.  Zulich 5  Dutch.  409 216,  244. 

State  Bank  of  Ohio  v.  Knoop 16  How.  369 34,  37,  75,  79. 

State  Freight  Tax  Case 15  Wall.  232 310. 

4 


1  CASES    CITED. 

State  Tonnage  Tax  Cases 12  Wall.  204 810. 

Steamboat  Co.  v.  Chase 16  Wall.  522 307. 

Steamboat  Josephine,  In  re 39  N.  Y.  19 11. 

Steamboat  Orleans  v.  Phoebus 11  Pet.  175 41,  84. 

Steamship  Co.  v.  Jolifte 2  Wall.  450 815,  320. 

e.  Port  Wardens 6  Wall.  31 314.  315,320. 

Stearns  v.  Burnham 5  Greenl.  261 251. 

Steele  v.  Spencer 1  Pet.  552 208. 

Steere  t).  Walling 7R  1.317 204. 

Stephenson  «.  Bannister 3  Bibb,  369 120. 

V.  Piscataqua  Fire  &  Mar. 

Ins.  Co 54  Maine,  70 855. 

Stevens  ».  Gaylord 11  Mass.  256 249,251,254. 

V.  Mangum 27  Miss.  481 92. 

e.  Norris 30  N.  H.  466 134 

V.  Phoenix  Ins.  Co 41  N.  Y.  149 287. 

Stevenson  «.  Gray 17  B.  Mon.  193. ..7,  177,  178,  192. 

Stewart  v.  Gray Hempst.  94 115. 

V.  Jessup 51  Ind.  413 241. 

Stiles  t).  Davis 1  Black,  101 125. 

Stillman  v.  White  Rock  Manf.  Co 3  Wood.&  M.  538..S44,  345. 

.Stone  V.  Scripture 4  Lans.  186 252. 

«.  Tibbelts 26  Maine,  110 134. 

Strong  V.  Stevens 4  Duer,  668 146. 

Struble  v.  Malone 3  Iowa,  586 107. 

Stuart*.  Hines 33  Iowa,  60 327. 

Sturdevant  ?j.  Pike 1  Ind.  277 212. 

Sturges  ».  Crowninshield 4  Wheat.  122 52,  75,  79,  827,  328, 

329. 

Sturgis  c.  Boyer 24  How.  117 304,305,307. 

Suarez  v.  Mayor  of  N.  Y 2  Sandf.  Ch.  173..  198. 

Sun  «.  Underwood 49  Maine,  181 237. 

Supervisors  v.  Durant 9  Wall.  415 16. 

V.  U.  S 18  AVall.  71 85. 

Sutton  V.  Warren 10  Met.  451 182. 

Suydam  c.  Broadnax 14Pet.67 38,  40,  41.   132.  270, 

328,  355. 

V.  Williamson 24  How.  427 31,  84. 

Swane.  Smith 26  Iowa.  87 22,  25. 

Swarthout  v.  N.  J.  Nav.  Co. 48  N.  Y.  209 30G,  307. 

Swatzel  V.  Arnold 1  Woolw.  383.. ..252,  253,254. 

Swearingen  v.  Morris 14  Ohio  St.  424  ..44,  194, 195,  196. 

V.  U.  S 11  Gill  &  J.  373.. 174. 

Swift  e.  Tyson 16  PeL  1.. 87,  271. 


Talbott  t>.  Merchants' Dis.  &Trans.  Co..41  Iowa,  247 50,  59,  60. 

Tulcott  V.  Delawaie  Ins.  Co 2  Wash.  C.  C.  449. 115. 


CASES    CITED.  1! 

Talmage  t).  Chapel 16  Mass.  71 252,372. 

Tanner  «.  Allen Litt.Sel.  Cases,  25.148. 

Tarble's  Case 13  Wall.  397 11,  12,  331,  382.  833. 

Tardy  ».  Morgan 3  McL.  358 201.207,209. 

Tatem  v.  Wright 3  Zab.  429 286. 

Taylor,  The  Moses 4  Wall.  411 11,  12,  301,  303,  304, 

306. 

Taylor  ©.  Boardman 25Vt.581 69,  198. 

V.  Brown 5  Cr.  234 37. 

V.  Carpenter 2  Wood.  &  M.  1.-106. 

V.  Carryl 20  How.  583 12,338. 

V.  Drew 21  Ark.  485 50. 

V.  Martin. 2  Curt. 454 1. 

V.  Runyan 13  Iowa,  474,  &  9 

Id.  522 98,118. 

V.  Shew 39  Cal.  536 90. 

«.  Taintor 16  Wall.  366 220. 

Teagle  c.  Deboy 4  Blackf.  134 144. 

Teglerc.  Shipman 33  Iowa,  194 48,  59. 

Terrett  «.  Taylor 9  Cr.  43 75. 

Thatcher  B.  Powell 6  Wheat.  119  ....30,  37. 

Thayer  «.  Brooks 17  Ohio,  489 241,242,243. 

D.Elliott 16  N.  H.  102 50. 

Thelusson  B.  Smith 2  Wheat.  396 136,  137. 

Thomas©.  Robinson 3  Wend.  267 116. 

V.  Southard 2  Dana,  475 23. 

Thomason«.  State 15  Ind.  449 314. 

Thompson,  In  re 1  Wend.  45 186. 

Thompson  v.  Alger 12  Met.  428 36. 

V.  Charnock 8  T.  R.  139 355. 

«.  Emmert 15  111.  415,  and  4 

McL.  96 101,106,124,126.    .. 

©.  Holton 6  McL.  386 75. 

i>.  Ketcham 4  John.  285 47,51,65. 

V.  Phillips Baldwin,  246 37. 

V.  Tioga  R.  R.  R.  Co 36  Barb.  79 176. 

V.  Waters 25  Mich.  214 4,  5,  288,  290. 

«.  Whitman 18  Wall.  457 102,  103,  107, 112, 167, 

294. 

V.  Wilson 2  N.  H.  291 251. 

Thomsons.  Lee  Co. 22  Iowa,  206 18,  94. 

ThorndicetJ.  Rice 24  Am.  Law  Rep. 

19 183. 

Thome  ».  Watkins 2  Ves.  Sr.  35 201. 

Thorner  ».  Batory 41  Md.  593 96. 

Thornhill  v.  Bank  of  La 3  Nat.  Bank.  Reg. 

110 329. 

Thorp  V.  Craig 10  Iowa,  461 62,  64. 

Thorpe  v.  Rutland  &  Ben.  R.  R.  Co.... 27  Vt.  140 246. 

Thornton,  Ex  parte 9  Tex.  635 223,  225. 


lii  OASES    CITED. 

Thraaher  e,  Everhart 8  Gill  &  J.  234. ..52. 

Thumb  «.  Gresham 2  Met.  (Ky.)  306.  .249. 

Tildenc.  Blair 21  Wall.  241 63. 

Tingley  e.  Bateman 10  Mass.  343 128. 

Tioga  R.  R.  Co.  v.  Blossburg  &  Corning 

R.R.  Co 20  Wall.  137 85,176. 

Titus  V.  Scantling 4  Blackf.  89 47. 

Tobin  V.  Walkinshaw 1  McA-llister,  186.186. 

Toland  ».  Sprague 12  Pet.  300 124 

Tolene.  Tolen 2  Blackf.  407  ....181. 

Tombigbee  R.  R.  Co.  v.  Kneeland 4  How.  16 280. 

Toulandon  v.  Lachenmeyer 37  How.  Pr.  145.-171. 

Towner.  Smith 1  Wood.&M.137.134,  185,138. 

Townes  t».  Durbin 3  Met.  (Ky.)  352.-196. 

Townsend  e.  Jennison 9  How.  407 171. 

Trabue  ».  Short 5  Cold.  293,  &  18 

La.  Ann.  257... 61. 

Treadway  v.  Chicago*  N.W.  R  R.  Co..21  Iowa.  351 358. 

Trecothick  v.  Austin 4  Mas.  16 251. 

Trevor  «.  The  Steamboat  Ad.  Hine 17  Iowa,  349 304. 

Trice  v.  Hannibal  &  St.  Jo.  R.  R.  Co.. .49  Mo.  438 156. 

Trigg  V.  Conway Hcmpst.  538 115. 

Trotter  v.  White 10  S.  &  M.  607. ..260. 

Trustees  of  Vernon  Society  v.  Hills... 6  Cow.  23 285. 

Turnbull  t>.  Payson 5  Otto,  418 112. 

Turner  t».  American  Baptist  Miss 5  McL.  344 213. 

V.  Ireland 11  Humph.  447  ..92. 

V.  Linam 55  Geo.  253 260. 

«.  Waddington 3  Wash.  C.  C.  126.115. 

Tyler  t).  People 8  Mich.  320 229,239,240. 

t.  Thompson 44  Tex.  497 256. 

e.  Trabue 8  B.  Mon.  306 120. 

9.  Wilkinson 4  Mas.  397 844. 


U. 

Union  Bank  u.  Jolly 18  How.  503 38,40,  270,  271,  855. 

Union  Mut  Life  Ins.  Co.  v.  Lewis 11  Chi.  Leg.  News, 

139 251,256. 

United  States  tj.  Baker ..5Blatch.  6 3. 

V.  Bank  of  North  Car... 6  Pet.  29 137. 

V.  Bevans 3  Wheat.  337 309. 

«.  Booth 21  How.  o06 332. 

e.  Bryan 9  Cr.374 136. 

V.  Coolidge 1  Wheat.  415 215. 

«.  Crosby 7Cr.ll5 208.  209,210. 

V.  Cruikshank 2  Otto,  542 10,  248. 

O.Davis 2  Sum.  482 220. 


CASES    CITED.  liii 

United  States  c.  Dunham 21  Monthly  Law 

Rep.  591 30. 

«.  Fernandez 10  Pet.  303 214. 

V.  Fisher 2  Cr.  358 136. 

V.  Fox 4  Otto,  315 201,  208,  209,  215. 

V.  Hoar 2  Mas.  311. 174. 

V.  Holliday 3  Wall.  407 1. 

V.  Rowland 4  Wheat.  108 34,  39,  40.  41, 136. 

V.  Hudson 7  Cr.  32 215. 

«.  Hughes 11  How.  552,  &  4 

Wall.  232 214. 

©.Johns 4  Ball.  412,  &  1 

Wash.  C.C.  363.117. 

«.  Keokuk 6  Wall.  514 11,  12,43. 

«.  La  Vengeance.. 3  Dall.  297. 304. 

V.  he  Baron 19  How.  73 57. 

7).  Morrison....        4  Pet.  124 37. 

V.  New  Bedford  Bridge 

Co... 1  Wood.  &M.  401 -29. 

V.  Palmer 3  Wheat.  610 1. 

«.  Peters 5  Cr.  115 16. 

V.  Reese 2  Otto,  214. 10,  248. 

c.  Rillieux 14  How.  189 214. 

V.  State  Bank 6  Otto,  30 300. 

V.  Stephenson 1  McL.  462. 56. 

«.  The  Araedy.. 11  Wheat.  392.... 114,  117,304. 

V.  The  Betsey 4  Cr.  442 304. 

V.  Villato 2  Dall.  370 32. 

«.  Wells 11  Am.  Law  Reg. 

(N.  8.)  494 146. 

«?.  Wood 2    Wheeler's    Cr. 

Cases,  326 18,  113. 

United  States  Trust  Co.  v.  Lee 73  111.  142 290. 

Urtetiqui  v.  D'Arcy 9  Pet.  692 359. 


V. 

Van  Allen  v.  The  Assessors 3  Wall.  573 322.  323,  324. 

Van  Alstine  v.  Lemons 19  HI.  394 172. 

Van  Ankin  ».  Westfall 14  John.  233 144. 

Van  Antwerp  v.  Hulhurd 7  Blatch.  426 3. 

Van  Buren  v.  Downing 41  Wis.  122 311. 

Van  Ness  ^.  Pacard 2  Pet  137 29,34. 

Van  Reimsdyk  v.  Kane 1  Gall.  371 148. 

Van  Santwood  v.  Sandford 12  John.  198 25. 

Van  Schaick  v.  Edwards 2  John. Cases, 355. 148. 

Vance  v.  Campbell 1  Black,  427 30. 

Vaughan  v.  Barclay 6  Whart.  392 21 2. 

V.  Northup 15  Pet.  1 27,251,  252,297,299. 


liv  CASES    CITED. 

Venice  v.  Murdock 2  Otto,  494 85. 

Vermilyat).  Beatty 6  Barb.  429 25J 

Vickerj' c.  Beir 16  Mich.  50 253. 

Vischer  t).  Vischer 12  Barb.  640 180. 

Vliett).  Camp 13  Wis.  198 66. 

Toorhees./n  re 32  N.J.  Law,  141.221. 

Vose  V.  Cockroft 44  N.  Y.  (5  Hand,) 

415 301,304. 

«.  Philbrook 3  Story,336 30. 


W. 

Wagner  D.  Bissell 3  Iowa,  396 33. 

Wakefield  v.  Ives 35  Iowa,  238 183. 

Wales  r.Alden 22  Pick.  245 44,  130. 

Walker  t).  Leight 30  Iowa,  310 99. 

V.  Maxwell 1  Mass.  104 118. 

V.  Walker 9  Wall.  743 42,  269. 

Walsh®.  Dart 12  Wis.  635 119. 

T.  Durkin 12  John.  99 146,  147. 

Walters  v.  Chicago,  R.  I.  &  Pac.  R.  R. 

Co 41  Iowa,  71 157. 

V.  Steamboat  MoUie  Dozier...24  Iowa,  192 304. 

Wanzeru  Bright 52  111.35 20,  223. 

Ward  V.  Maryland 12  Wall.  418 313. 

•0.  Morrison 25  Vt.  593 69. 

V.  Quinlivin 57  Mo.  425 105. 

Warder  «.  Arell 2  Wash.  (\^a.)  282.8,  10,  46,  47,  66. 

Waring  v.  Clarke 5  How.  441 301,  302,  306. 

Warren  T.  Flag 2  Pick.  448 116. 

V.  Hofer 13  lud.  167 189,  200. 

t>.  Lynch 5  John.  239 25.  52,53. 

V.  McCarthy 25  111.  95 93,  99, 102. 

V.  Union  Nat.  Bank 7  Phila.  156 296. 

Warren  Manf.  Co.  o.  JEtna  Ins.  Co 2  Paine,  502 24,  106,  124   125,  126. 

Washington  A.  &  G.  Steam  Packet  Co. 

V.  Sickles 24  How.  333 114. 

Watchman,  The 1  Ware.  232 138. 

Waters*.  Barton 1  Cold.  450 173. 

c.  Day.. lOVt.  487 153. 

Watkinsr.  Holman 16  Pet.  26 201,207,208,209,212. 

Watson  r.  Bourne 10  Mass.  337 132. 

«.  CabotBank 5  Sandf.  423,  &  4 

Duer,  606,  note. 283. 

r.  Jones 13  Wall.  679 42. 

T.  Mercer 8  Pet.  88 78. 

V.  State 36  Miss.  593 229. 

t).  Tarpley 18  How.  517 38,270,271. 

Watts  t).  Kinney 2:3  Wend.  484 140,243. 


CASES    CITED.  Iv 

Watts  ©.  Waddle 6  Pet.  389 207,208,213. 

Wayland«.  Porterfleld 1  Met.  (Ky.)  638.. 260. 

Wayman?).  Southard 10  Wheat.  1 38. 

Webber®.  Howe 36  Mich.  150 48. 

Webster  v.  Cooper 14  How.  488 85. 

V.  Massey 2  Wash.  C.  C.  157.47. 

V.  Rees 23  Iowa,  269 120,  175. 

Weil  V.  Lowenthal 10  Iowa,  575 23. 

Welch  c.  Sykes 8  111.  197 92,  106. 

Weld  V.  Chapman 2  Iowa,  524 348,  349. 

Wells  «.  Wells 85  Miss.  638 210,211. 

Welton  V.  Missouri 1  Otto,  275 309,  310,311,313,  314. 

Wescott  V.  Brown 13  Ind.  83 92. 

West  Cambridge  v.  Lexington 1  Pick.  506 182. 

Western  &  Atl.  R.  R.  Co.  v.  Strong. ...52  Geo.  461 156. 

Westervelt  tj.  Lewis -..2McL.  511 23,24,92,106,125. 

Weston  0.  Charleston 2  Pet.  449 324,  325. 

©.Morse 40  Wis.  455 304. 

Wheaton  ®.  Peters 8  Pet.  591 29,  34. 

Wheeler  I).  Burrow 18  Ind.  14 188.  189. 

Whetstones.  Whetstone 31  Iowa,  276 108. 

Whipple  «.  Thayer 16  Pick.  25 204. 

Whiston®.  Stodder 8  Martin,  95 46. 

Whitaker  v.  Bramson 2  Paine,  209 146. 

Whitcomb  v.  Whitcomb 46  Iowa,  437 182. 

White,  Bx  parte 49  Cal.  434 223,  225. 

Whites.  Howard 88  Conn.  442 290. 

V.  Howard 46  K  Y.  144 190,  191,  208. 

V.  Knapp 47  Barb.  549 33 

V.  Merritt 7  K  Y.  852 89. 

V.  White 7  Gill  &  J.  208.-.212. 

V.  Whitman 1  Curt.  494 146. 

White  River  Bank  s.  Downer 29  Vt.  332 88. 

Whitford  v.  Panama  R.  R.  Co. 23  K  Y.  465 122,  145, 156, 161, 162. 

Whitney,  Exparte 13  Pet.  404 40. 

Whiton  V.  Chi.  &  N.  W.  R.  R.  Co. 25  Wis.  124 355. 

Wilcox  s.  Hunt. 13  Pet.  378 30,46. 

V.  Jackson 13  Pet.  499 213,  214. 

V.  Wilcox 10  Ind.  436 180. 

Wilkinson  v.  Leland 2  Pet.  627 76,  201,  307,  209. 

Williams, /n  re 3  Nat.  Bank.  Reg. 

74 327. 

Williams  v.  Armroyd 7  Cr.  433 101. 

«.  Ayrault 31  Barb.  364 145. 

v.  Bacon.. 10  Wend.  636 223. 

©.Benedict 8  How.  107 271,  297,398,  299. 

V.  Bruffy 6  Otto,  176 76. 

V.  Cheney 8  Gray,  206 284. 

v.  Creswell 51  Miss.  817 289. 

v.  Haines 27  Iowa,  251 52,  53. 


Ivi  OASES   CITED. 

Williams  f>.  Kirtland 13  "Wall.  306 85. 

V.  Penn.  R.  R.  Co 9  Phila.  298 260. 

e.  Suffolk  Iu8.  Co 18  Pet.  415,  and  8 

^  Sum.  270 1,20,85. 

V.  Tearney 8  S.  «&  R  58 805. 

9.  Wade 1  Met.  82 64. 

t>.  Wilkes 14  Penn.  St.  228.. 112. 

V.  Williams 5  Md.  467 196. 

Willings  t.  Consequa  Pet.  C.  C.  802. ...46,  58. 

Wills  V.  Cowper 2  Ohio,  124 209. 

Willson  V.  Blackbird  Creek  Marsh  Co.. 2  Pet.  245 309. 

Wilson  t).  Carson 12Md.54 203. 

V.  Lazier 11  Gratt.  477 121. 

V.  McKenzie 7  Hill,  219 142. 

V.  Stratton 47  Maine,  120 199. 

Windsor  v.  Jacob 2  Tyler,  192 50. 

Wisconsin  v.  Duluth 2  Dill.  406 1. 

Wiswall  V.  Sampson 14  How.  52 296,  297,299 

Womack  v.  Dearman 7  Port.  518 112. 

Wood  1?.  Davis 18  How.  467 358. 

V.  Matthews 2  Blatch.  370  ....353.  359. 

V.  Warner 15  N.  J.  Eq.  81. ..212. 

V.  Watkinson 17  Conn.  500 102. 

Woodbridge  «.  Allen 12  Met.  470 133. 

Woodhull  V.  Wagner Baldwin.  296  ....132,  185,  828. 

Wood  Hydraulic  Co.  v.  King 45  Geo.  84 289. 

Woodruff  t).  Trapnall 10  How.  190 77. 

Woodward  v.  Mich.,  etc.,  R.  R  Co 10  Ohio  St.  121  ..145, 156, 163. 

«.  Roane 23  Ark.  523 5. 

V.  Willard 33  Iowa,  542 87,  88. 

Woodworth  v.  Spring 4  Allen,  321 266,  267. 

Worster  c.  Winnipiseogee  Lake  Co 25  N.  H.  525 140. 

Wright  V.  Bales 2  Black,  535 30. 

V.  Bartlett 48  N.  H.  548 51. 

V.  Hollingsworth 1  Pet.  165 30. 

V.  Wright 24  Mich.  180 179, 180. 

Wyman  v.  Mitchell 1  Cow.  816 328. 


T. 

Tales  V.  Yates 13  N.  J.Eq.  280.-181. 

Yeatman  v.  Cullen 5  Blackf.  240 64. 

Yelverton  v.  Conant 18  K  H.  123 145. 

York  8s  Maryland  Line  R  R  Co.  v. 

Wlnans 17  How.  30 284. 

Young  V.  Harris 14  B.  Mon.  447. ..50. 

V.  O'Neal 3  Sneed,  55 250,  261. 

•.Thayer 1  G.  Greene.  196.  .114, 117. 


CASES    CITED.  Ivii 


Ziegenfuss,  Ex  parte 2  Ircd.  Law,  463 .  329. 

Zipcey  v.  Thompson 1  Gray,  243 44. 


AMERICAN  INTEE-STATE  LAW. 


CHAPTEE  I. 


INTKODUCTION. 


The  object  of  this  volume  is  to  treat  of  American  Inter-State 
Law  as  the  same  exists  under  our  peculiar  system  of  duplex  gov- 
ernment, and  it  is  therefore  no  part  of  our  purpose  to  discuss 
the  doctrine  of  international  law,  or  law  of  nations,  as  the  same 
exists  between,  and  is  recognized  by,  nations  and  states  that  are 
entirely  foreign  to  each  other;  but  to  this  we  will  only  refer 
when  necessary  in  connection  with  the  more  immediate  subject 
of  our  work. 

Nor  is  it  our  purpose,  except  as  its  relevancy  may  incidentally 
occur,  to  treat  of  the  political  powers,  or  of  the  political  func- 
tions, of  the  several  departments  of  the  State  or  national  govern- 
ments; for,  as  a  general  principle,  the  exercise  of  these  is  not 
the  subject  oi  judicial  cognizance  or  control. ^  Thus,  in  Wil- 
liams V.  Suffolk  Ins.  Co.,^  the  Supreme  Court  of  the  United 
States  advert  to  this  as  a  settled  principle,  in  these  words:  "  In 
the  cases  of  Foster  v.  Neilson,  2  Pet.  253,  307,  and  Garcia  v. 
Lee^  12  Pet.  511,  this  court  has  laid  down  the  rule,  that  the  ac- 
tion of  the  political  branches  of  the  government,  in  a  manner 
that  belongs  to  them,  is  conclusive."     In  the  case  of  Mississippi 

1  Gelston  v.  Hoyt,  3  Wheat.  246 ;  Jones,  5  How.  343 ;  Luther  v.  Borden, 

Taylor  v.  Martin,  2  Curt.  154;  Fel-  7How.  1;  United  States  ».  Holliday, 

lows  V.  Blacksmith,  19   How.  3G6;  3  Wall.  407 ;  Jones  «.  Walker,  2  Paine, 

Clark  V.  Braden,  16  How.  635;  United  688;  Georgia  v.  Stanton,  6  Wall.  50; 

States  v.  Palmer,  3  Wheat.  610;  Wil-  Mississippi  v.  Johnson,  4  Wall.  475; 

liams  «.  Suffolk  Ins.  Co.,  13  Pet.  415;  Wisconsin  v.  Duluth,  2  Dillon,  406. 
Garcia  v.  Lee,  12  Pet.  511 ;  Scott  v.         » 13  Pet.  420. 


2  AMERICAN    INTER-STATE    LAW. 

V.  Johnson^  President  of  the  United  States,^  there  was  an  appli- 
cation by  bill  in  equity  for  a  writ  of  injunction,  to  restrain  the 
President  from  executing  certain  acts  of  Congress,  and  the  Su- 
preme Court  of  the  United  States,  in  denying  the  application, 
said:  "Suppose  the  bill  filed  and  the  injunction  pra3'ed  for 
allowed.  If  the  President  refuse  obedience,  it  is  needless  to  ob- 
serve that  the  court  is  without  power  to  enforce  its  process.  If, 
on  the  other  hand,  the  President  complies  with  the  order  of  the 
court,  and  refuses  to  execute  the  acts  of  Congress,  is  it  not  clear 
that  collision  may  occur  between  the  executive  and  legislative 
departments  of  government?  May  not  the  House  of  Pepresen- 
tatives  impeach  the  President  for  such  refusal?  And,  in  that 
case,  could  the  court  interfere  in  behalf  of  the  President  thus 
endangered  by  compliance  with  its  mandate,  and  restrain  by 
injunction  the  Senate  of  the  United  States  from  sitting  as  a 
court  of  impeachment?  Would  the  strange  spectacle  be  offered 
to  the  public  world  of  an  attempt  by  this  court  to  arrest  proceed- 
ings in  that  court?  These  questions  answer  themselves."  So, 
also,  in  the  case  of  Fellows  v.  BlacJcsmith^^  in  which  the  valid- 
ity of  an  Indian  treaty  was  attempted  to  be  drawn  in  question, 
the  Supreme  Court  of  the  United  States  said:  "An  objection 
was  taken  on  the  argument,  to  the  validity  of  the  treaty,  on  the 
ground  that  the  Tonawanda  band  of  the  Seneca  Indians  were  not 
represented  by  the  chiefs  and  head  men  of  the  band,  in  the  ne- 
gotiations and  execution  of  it.  But  the  answer  to  this  is,  that 
the  treaty,  after  executed  and  ratified  by  the  proper  authorities 
of  the  government,  becomes  the  supreme  law  of  the  land,  and 
the  courts  can  no  more  go  behind  it  for  the  purpose  of  annull- 
ing its  effect,  and  operation,  than  they  can  behind  an  act  of 
Congress." 

In  the  case  of  The  Cherokee  Nation  v.  Georgia^^  and  cited  in 
Georgia  v.  Stanton^^  the  United  States  Supremo  Court,  Mar- 
shall, Ch.  J.,  said:  "The  bill  requires  us  to  control  the  legis- 
lature of  Georgia,  and  to  restrain  the  execution  of  its  physical 
force.  The  propriety  of  such  an  interposition  by  the  court  may 
be  well  questioned. .  It  savors  too  much  of  the  exercise  of  polit- 
ical power,  to  be  within  the  province  of  the  judicial  department." 

'  4  Wall.  500.  «  5  Pet.  1. 

« la  How.  36G.  «  6  Wall.  73. 


INTEODUCTION.  3 

In  the  same  case,  Johnson,  J.,  said  in  reference  to  the  bill  of 
complaint:  "  Much  of  the  matters  herein  contained  bj  way  of 
complaint,  would  seem  to  depend  for  relief  upon  the  exercise 
of  political  powers;  and,  as  such,  appropriately  devolving 
upon  the  executive,  and  not  the  judicial  department  of  the 
government."! 

Arnerican  Inter-State  Law  —  Defined.  —  The  term  American 
Inter-State  Law,  as  here  used,  embraces  the  law  which  governs 
the  American  States  in  their  dealings  and  relations  with  each 
other,  as  well  as  with  the  national  government,  and  the  extent 
of  recognition  and  binding  force  which  is  accorded  the  citizens 
and  laws  of  each  State,  and  of  the  national  government,  in  the 
American  courts.  ^ 

*  Any  case  which  asks  the  court  to  'The  term  American  Inter -State 

entertain  jurisdiction  of  a  political  Law  is  somewhat  akin  to  American 

question,  and  to  decide  it,  will  not  be  private  international  law,  but  it  is 

considered  by  the  same.    To  do  so  much  broader  and  more  comprehen- 

would  encroach  upon  the  supreme  sive.      On  the  general    subject   the 

powers  of  the  co-ordinate  branches  reader  is  referred  to  Story's  Conf.  of 

of   government.     U.  S.  ■».  Baker,   5  Laws;    Wharton's    Conf.    of    Laws; 

Blatchf.  6;  The  Hornet,  2  Abb.  35;  Burge's   Commentaries  on  Colonial 

The  Protector,  12  "Wall.  700 ;  Van  Ant-  Law ;   Gardner's  Institutes  of  Ameri- 

werp   V.    Hulburd,    7    Blatchf.  42G ;  can  Law ;  Westlake's  Private  Interna- 

Grossmeyer  v.  U.  S.,  4  Nott  &  H.  1 ;  tional  Law,  and  Foote's  Private  Inter- 

Marbury  v.  Madison,  1  Cr.  166.  national  Law,  a  work  just  published 

in  England. 


COMITY. 


CHAPTER   II. 

OOUITY  —  NATURAL   KIGHT  —  LAW  OF  NATIONS  AND  UNIVERSAL  LAW. 

1.  Comity.  Although  the  relations  of  the  several  American 
States  to  each  other  do  not  rest  upon  the  ordinary  principles  of 
comity  alone,  yet  these  relations  are  not  such  as  to  exclude  the 
doctrine  of  comity  from  their  inter-state  code,  or  from  their  con- 
duct toward  each  other  as  separate  states,  for  municipal  purposes; 
but  such  rather  as  should  increase  their  good  neighborhood  and 
regard  for  each  other.  ^ 

The  observance  of  comity  is  not  a  matter  of  obligation,  ordi- 
narily, between  states,  but  is  mere  matter  of  voluntary  courtesy 
and  favor,  which  may  be  extended  or  withheld  at  pleasure. ^  It 
is  in  virtue  of  this  voluntary  consent,  expressed  or  implied,  and 
this  only,  that  the  laws  of  one  entirely  independent  state  are  en- 
forced or  administered  in  the  courts  of  another,  to  any  extent,  oe 
in  any  respect  whatever  in  the  absence  of  compact  or  treaty 
stipulations  providing  therefor.  ^ 

But  where  no  inhibition  to  the  exercise  thereof  exists,  then 
such  comity  is  impliedly  permitted,  as  to  such  matters,  and  to 
such  an  extent,  as  does  not  conflict  with  the  local  policy,  or  differ 
from  the  local  laws  of  the  forum,  when  the  rights  of  persons  are 
involved,  which  are  of  a  transitory  nature.*  Not,  however,  for 
the  enforcement  of  penalties,  or  in  penal  actions,  or  matters  of 
police,  or  for  the  punishment  of  offenses  against  the  state;*  nor 

>  Bank  of  Augusta  c.  Earle,  13  Pet.  *  Story's  Conf.  of  Laws,  §  38;  Pen- 

519;  Thompson  v.  Waters,  25  Mich.  sacola  Tel.  Co.  t>.  Western  Union  Tel. 

214.  Co.,  2  Woods,  643 ;  S.  0.  6  Otto,  1. 

«  Story's  Conf.  of  Laws,  §§  36,  38;  »  Story's  Conflict  of  Laws,  8  621; 

Bank  of  Augusta  v.  Earle.  13  Pet.  519 ;  The  Antelope,  10  Wheat.  66 ;  Scoville 

Saul  V.  His  Creditors,  5  Martin,  (n.  b.)  v.  Canfleld,  14  John.  838 ;    State  v, 

569.  Knight,  Taylor's  Law  and  Eq.  (N.  C.) 

«  Story's  Conf.  of  Laws,  §  38.  65. 


NATURAL    RIGHT.  5 

as  to  statutory  rights  of  action,  or.  statutory  remedies.  *  This 
comity  is  not  the  comity  of  the  courts,  though  sometimes  so 
called,  but  is  the  comity  of  the  state,  and  is  merely  administered 
by  the  courts,  where  permitted  by  the  state,  as  other  laws  are 
ad  ministered.  3  In  a  case  cited  in  the  note  the  ruling  is  unam- 
biguous and  express,  that  "  comity  extends  only  to  enforce  obli- 
gations, contracts,  and  rights  under  provisions  of  law  of  other 
countries,  which  are  analagous  or  similar  to  those  of  the  state 
where  the  litigation  arises." ^ 

So,  too,  it  was  said  in  Arkansas,  that  the  rule  of  comity  will 
not  be  enforced  as  against  domestic  law  or  the  legal  rights  and 
interests  of  citizens,  or  to  their  injury.-*  When  a  government 
undertakes  to  enforce  or  administer  laws  of  other  communities, 
care  must  be  taken  that  no  injury  results  therefrom  to  its  own 
citizens.  5  The  municipal  laws  of  a  State  are  of  no  force  in 
other  States,  and  cannot  in  other  States  confer  a  right.  They 
have  no  extra-territorial  force  as  laws.^  But  where  they  enter 
into  a  contract  they  are  regarded,  and  enforced,  as  a  part  of  the 
contract,  and  not  as  mere  laws. 

2.  Natural  Right.  It  is  a  well  settled  maxim  of  the  law 
that  "  natural  right  is  that  which  has  the  same  force  among  all 
men."''  It  is  written  on  the  hearts  of  all  mankind.  Hence  it 
is  that  there  are  certain  rights  and  liabilities  which,  being  per- 
sonal, and  founded  in  natural  right,  do  follow  the  person  of  the 
parties  into  every  country  into  which  they  may  come.     These 

'  Pickering  v.  Fisk,  6  Vt.  102.    Jus-  ferent    States    and    countries    could 

tice    Chkistiancy,   in    treating  tliis  scarcely  exist." 

subject  in  Thompson  v.  Waters,  25  ^  Bank  of  Augusta  v.  Earle,  13  Pet. 

Mich.  214,  uses  the    following    Ian-  519;  Thompson  v.  Waters,  25  Mich. 

guage:     "  But  upon  the  principle  of  214,2-10. 

comity,  which  is  a  part  of  the  law  of  "  Hughes  v.  Klingender,  14  La  Ann. 

nations,  recognized,  to  a  greater  or  857. 

less  extent,  by  all  civilized  govern-  *  Woodward  v.  Roane,  23  Ark.  523. , 

nients,  effect  is  frequently  given   in  *  Woodward  v.  Roane,  23  Ark.  523, 

one  State  or  country  to  the  laws  of  527 ;  Olivier  v.  Townes,  2  Mart.  (n.  s.) 

another,  in  a  great  variety  of  ways,  93. 

especially  upon  questions  of  contract  ^  Milne  ■».   Morton,    6    Binn.    365; 

rights  to  properly,  and  rights  of  ac-  Hoyt    v.  Thompson,   19    N.  Y.  207; 

lion   connected  with,  or    depending  Woodward  v.  Roane,  23  Ark.  523,  537. 

upon,    such    foreign    laws,    without  ""  Branch's  Principia,  69; /««  ?ia<Mr- 

which  commercial  and  business  in-  ale  est  quod  apud  homines  eandem  hdbet 

tercourse  between  the  people  of  dif-  potentiam.    7  Co.  12. 


6  LAW    OF    NATIONS    AND    UNIVERSAL    LAW. 

natnral  rights  and  liabilities  are  of  the  law  of  nature,  and  are 
parcel  of  the  law  of  nations;  thej  are  a  species  of  universal  law, 
and  are  binding  upon,  and  are  recognized  and  enforced  in,  the 
courts  of  all  civilized  countries,  in  times  of  peace.  The  enforce- 
ment thereof  does  not  depend  upon  the  citizenship  or  allegiance 
of  the  parties,  nor  upon  the  place  or  country  in  which  the  right 
of  action  accrues,  but  the  same  are  enforceable  in  the  courts  of 
all  other  States  and  countries  by  implied  permission  in  law,  to  sue 
against  those  thus  liable  who  are  there  found. 

Law  of  Nations  and  Universal  Law.  These  principles  of  nat- 
ural right  and  national  law  are  common  to  the  jurisprudence  of 
all  countries,  as  a  part  of  the  law  of  nations,  or  great  communi- 
ties of  states  and  sovereignties,  and  are  thereby  a  part  of  the 
domestic  code  of  each,  and  by  these  the  people  of  each  are  bound 
to  those  of  the  others,  in  their  personal  transactions. 

They  have  grown  up  as  a  necessary  result  of  commerce  and 
intercourse  between  organized  governments  and  courts  which 
are  foreign  to  and  independent  of  each  other.  They  are  not  mere 
creatures  of  comity,  enforceable  at  the  will  of  neighboring  states, 
as  matter  of  favor  or  good  neighborhood,  but  are  of  as  truly 
binding  authority  as  are  the  local  laws  of  each  binding  on  its 
own  citizens,  subjects,  officers  and  courts.  They  are  of  that  part 
of  the  law  of  nations  which  are  not  only  obligatory  upon  the 
sovereign  or  aggregate  community,  but  are  of  an  inter-state 
character  in  the  transactions  of  individuals,  and  are  a  necessity 
as  well  of  the  social  fabric  as  of  inter-state  intercourse,  commerce 
and  trade.  They  are  not  the  creatures  of  special  enactments,  but 
are  tacitly  acknowledged  and  enforced  in  all  civilized  countries. 
Nor  is  the  local  law  anywhere  made  to  give  way  to  their  enforce- 
ment, for  they  are  themselves  a  part  of  the  local  law  by  virtue 
of  their  universality.'     In  the  language  of  Sir  William  Black- 

'  Moultrie  v.  Hunt,  23  N.  Y.  394,  civilized  nations  agree,  as  a  general 

396.    Justice  Denio,  speaking  in  this  rule,  to  recognize  titles  to  movable 

case  of  the  universal  recognition  of  property  created  in  other  States   or 

the  title  to  personal  property,  says :  countries  in  pursuance  of  the  laws  ex- 

"  Every  country  enacts  such  laws  as  isting  there,  and  by  parties  domiciled 

it  sees  fit  as  to  the  disposition  of  per-  in  such  States  or  countries.    This  law 

sonal  properly,  by  its  own  citizens,  of  comity  is  parcel  of  the  municipal 

either  inter  vivos  or  testamentary ;  but  law  of  the    respective  countries   in 

these  laws  are  of  no  inherent  obliga-  which  it  is  recognized." 
tion  in  any  other  country.    Still,  all 


LAW    OF    NATIOKS    AND    UNIVERSAL    LAW.  7 

stone,  these  rules  of  law  "  result  from  the  principles  of  natural 
justice  in  which  all  the  learned  of  every  nation  agree,"  and  are 
in  England  adopted  to  their  full  extent  by  the  common  law,  and 
are  held  to  be  the  law  of  the  land."i  Such,  too,  they  were,  and 
still  are,  in  the  American  States,  irrespective  of  the  national 
Constitution  and  Union.  Though  sometimes  re-enacted,  yet 
their  re-enactment  is  not  regarded  as  the  introduction  of  new 
rules  of  law,  but  simply  as  declaratory  of  these  rules  of  universal 
and  national  law,  without  which,  as  is  well  said  by  the  same 
learned  jurist,  a  state  or  kingdom  would  "  cease  to  be  a  part  of 
the  civilized  world."  *  *  *  "In  mercantile  questions,  such 
as  bills  of  exchange  and  the  like;  in  all  marine  causes  relating 
to  freight,  average,  demurrage,  insurance,  bottomry,  and  others 
of  a  similar  nature;  and  in  the  law  merchant,  which  is  a  branch 
of  the  law  of  nations,  they  are  regularly  and  constantly  adhered 
to.  So,  too,  in  disputes  relating  to  prizes,  to  shipwrecks,  to  hos- 
tages, and  ransom  bills,  there  is  no  rule  of  decision  but  this  great 
universal  law,  collected  from  history  and  usage,  and  from  such 
writers  of  all  nations  and  languages  as  are  generally  approved 
and  allowed  of,"^ 

"  The  law  of  nations,"  says  the  same  learned  author,  "  is  a  sys- 
tem of  rules,  deducible  by  natural  reason,  and  established  by 
universal  consent  among  the  civilized  inhabitants  of  the  world, 
in  order  to  decide  all  disputes,  to  regulate  all  ceremonies  and  civ- 
ilities, and  to  insure  the  observance  of  justice  and  good  faith  in 
that  intercourse  which  must  frequently  occur  between  two  or 
more  independent  states,  and  the  individuals  belonging  to 
each." 

Among  the  laws  of  inter-state  general  recognition  may  also  be 
classed  the  laws  of  marriage^  and  divorce,*  by  which  such  as  are 
valid  where  consummated  or  obtained  are  regarded  as  valid  in 
law  in  all  other  states,  unless  the  marriage  be  polygamous,  in- 
cestuous, immoral,  or  otherwise  obnoxious  to  the  moral  senses 
of  civilization. 

Also,  the  law  which  requires  the  movable  property  of  a  person 

'  Black.'s  Com.  Book  4, 67.  »  2  Kent,  *92 ;  Medway  v.  Needham, 

»  Black.'s  Com.  Book  4,  67.    Wheat-      16  Mass.  157 ;  Stephenson  v.  Gray,  17 

en's    International    Law,    §§    1-17 ;      B.  Mon.  193. 

Woolsey's  International  Law,  §§  3-5.         *  Cheever  v.  Wilson,  9  Wall.  108, 

123. 


8 


LAW    OF    NATIONS    AND    UNIVERSAL    LAW. 


who  dies  intestate  to  be  distributed  in  accordance  with  the  law 
of  the  country  wherein  was  his  domicile  at  the  time  of  his  death, 
irrespective  of  where  the  property  may  be,  or  of  the  place  at 
which  he  may  die;  and  which  always  regards  movable  property 
as  disposable  according  to  the  law  of  the  owner's  domicile. i 

And,  the  equally  well  recognized  principle  that  contracts  valid 
by  the  law  of  the  place  where  they  are  made,  or  lex  loci  con- 
tractus^ are  valid  in  every  other  country  or  State.  The  excep- 
tions to  this  rule  will  be  noticed  hereafter,  under  the  proper  head 
in  relation  to  contracts. ^  So,  also,  we  will  notice  others,  under 
their  proper  order. 


»  Ennis  t>.  Smith,  14  How.  400,  465, 
466. 

'  Story  on  Conf.  of  Laws,  §  273 ; 
Nelson  v.  Fotterall,  7  Leigh.  201; 
Warder  v.  Arell,  2  Wash.  (Va.)  282, 
295.  In  this  case,  one  of  the  earliest 
American  decisions  on  the  subject, 
the  Court  of  Appeals  of  Virginia, 
Roane,  J.,  say:  "This  contract  hav- 
ing been  made  in  Pennsylvania,  with- 
out a  view  to  performance  in  any  other 
State,  the  agreement  made  upon  the 
trial  of  the  cause,  referring  to  those 
laws,  was  an  act  of  supererogationi 
and  entirely  unnecessary,  for  it  is  clear 
that  the  laws  of  that  country  where  a 
contract  is  made  must  govern  the  fate 
of  it.  The  rule  which  I  have  just 
mentioned  is  laid  down  in  the  case 


of  Robinson  v.  Bland,  2  Burr.  1679, 
and  is  well  explained  and  illustrated 
in  Fonblanque's  excellent  'Treatise 
of  Equity,'  2  vol.  p.  443.  It  is  true  that 
the  laws  of  one  country  have  not,  of 
themselves,  an  extra-territorial  force 
in  another ;  but,  by  the  general  assent 
of  nations,  they  are  always  regarded, 
in  contracts  formed  there.  A  distinc- 
tion, however,  is  attempted  in  this 
case,  under  tlie  idea  that  this  is  a  penal 
law,  and  that  the  courts  of  one  coun- 
try will  never  execute  the  penal  laws 
of  another.  The  principle  is  true,  but 
inapplicable.  The  law  of  1777  points 
out  a  mode  of  discharging  debts 
different  from  that  which  is  custo- 
mary; it  may  produce  an  injury,  but 
it  is  not  therefore  penal." 


STATE    AND    NATIONAL    SOVEEEIGNTY. 


CHAPTEK    III. 

CORRELATION   OF   GOVERNMENT CITIZENSHIP    AND    ALLEGIANCE 

SUABILITY   OF   STATES. 

I.    State  and  National  Sovekeignty.     Duality  and  Unity  of  Gov- 

ERNMENT. 

II.    Citizenship  and  Allegiance. 

III.  Suits  between  Two  or  More  States. 

IV.  Suit  against  a  State  by  a  Citizen  op  Another  State. 

1.  State  and  National  Sovereignty.  Duality  and  Unity  of 
Government.  We  will  now  proceed  under  this  and  the  subse- 
quent heads  of  the  present  chapter,  to  treat  somewhat  of  the 
<jorrelation  of  our  government  and  courts;  in  doing  which,  being 
aware  of  the  difficulty  of  the  task,  and  of  the  sacred  ground  on 
which  we  tread,  we  will  carefully  confine  ourselves  to  the  law  of 
adjudicated  cases.  We  will  endeavor  to  regard  our  complex,  yet 
beautiful,  system  of  interwoven  State  and  national  sovereignties 
and  jurisprudence,  not  as  embodying  any  actual  conflict  of  law, 
but  rather  as  an  harmonious  whole,  composed  of  so  many  inde- 
pendent, yet  kindred,  parts,  each  moving  in  its  own  proper 
sphere,  and  not  necessarily  impeded,  or  interfered  with,  by  the 
others,  believing  as  we  do,  that  if  conflict  occurs  it  is  by  reason 
of  one  or  more  of  them  departing  from  their  proper  spheres  of 
action. 1  The  true  line  of  demarcation  between  the  respective 
powers  of  State  and  national  courts  is  not  always  very  percepti- 
ble or  easily  defined,  but,  for  that  very  reason,  it  devolves  upon 
both  to  be  cautious  in  the  exercise  of  doubtful  authority. ^ 

Paramount  Authority  of  National  Courts.     Whenever  a  ques- 
tion of  paramount  jurisdiction  arises,  the  national  courts  are,  in 

'  Ex  parte  Holman,  28    Iowa,  88.  jurist,    Chief    Justice     Marshall, 

Per  Dillon,  J.:     "Each  court  must  says:     "The  national  and  State  sys- 

keep  within  its  own  orbit."  Id.  p.  112.  tern  are  to  be  regarded  as  one  whole." 

Cohens  fl.  Virginia,  6  Wheat.  264,  419.  ''Railroad    Company  v.   Ilusen,  5 

In  this  case,  our  great  and  eminent  Otto,  465,  470,  474. 


10  UNITY    AND    DUALITY    OF    OUR   GOVERNMENT. 

the  very  nature  of  things,  as  well  as  by  the  provisions  of  the 
Constitution,  tlie  supreme  arbiters  tliereof.* 

In  the  case  of  Railroad  Company  v.  Ilusen,  the  learned  Judge 
Strong,  realizing  that  imperfectness  whicli  is  common  to  all 
created  tilings,  and  therefore  as  affording  no  argument  against 
the  value  of  our  duplex  system  of  government,  says^  in  relation 
to  one  of  those  respective  powers:  "What  that  power  is,  it  is 
difficult  to  define  with  sharp  precision,  *  *  *  and  as  its  range 
sometimes  comes  very  near  to  the  field  committed  by  the  Con- 
stitution to  Congress,  it  is  the  duty  of  the  courts  to  guard  vigi- 
lantly against  any  needless  intrusion. "^  The  same  may  be  said, 
with  equal  propriety,  in  reference  to  all  doubtful  questions  inci- 
dent to  our  governmental  system.  The  line  of  approach  must 
be  carefully  kept  in  the  foreground,  and  any  intrusion  thereon 
most  vigilantly  avoided. 

Unity  and  Duality  of  Our  Government.  Though  the  citizens 
of  the  several  States  are  one  people  and  one  nation,  under  the 
unity  of  the  national  government  as  the  supreme  authority 
within  the  limitations  of  the  Constitution,'  yet  the  States  them- 
selves are  severally  sovereign,  independent,  and  foreign  to  each 
other,  in  regard  to  their  internal  and  domestic  affairs.*  Such 
being  the  case,  it  results  therefrom  that  the  State  constitutions 
and  laws  have  no  extra-territorial  force,  anywhere,  except  as  con- 
ceded to  them  by  mere  comity.^  Were  it  otherwise,  their  con- 
dition would  be  incompatible  with  State  sovereignty  and 
independence  of  each  other,  inasmuch  as  the  extra-territorial 
force  of  the  laws  of  one  within  the  territorial  boundaries  of  an- 

'  Pensacola  Telegrapli  Co.  v.  West-  ■*  Cohens  v.  Virginia,  6  Wheat.  414; 

ern  Union  Tel.Co.,  6  Otto,  1  and  10;  Mcllvalne  n.  Coxe,  4  Cr.  209;  Bank 

s  5  Otto,  470,  474.  of  the  U.  S.  v.  Daniel,  12  Pet.  33;  U. 

'  McCulloch  ©.  Maryland,  4  Wheat.  S.  c.  Cruikshank,   2  Otto,  543,  550; 

316;  Dodge  v.  Woolsey,  18  How.  336,  Buckner  t?.  Finley,  2  Pet.  586;  Pen. 

347 ;    Lonsdale   «.   Brown,    4  Wash.  noyer  v.  Neflf,  5  Otto,  714. 

C.  C.  86;  Buckner  v.  Finley,  2  Pet.  «  Bank  of  Augusta  v.  Earle,  13  Pet 

586;  Bank  of  U.  S.  v.  Daniel,  12  Pet.  519;  Blanchard  v.  Russell,  13  Mass.  1 ; 

32;  Rhode  Island  ©.  Massachusetts,  12  Kentucky  v.   Bassford,  6  Hill,  527. 

Pet.  657 ;  Warder  v.  Arell,  2  Wash.  Seymour  v.  Butler,  8  Iowa,  804 ;  Pen. 

(Va.)  282,  298;  U.  S.  v.  Reese,  2  Otto,  noyer  v.  Neff,  5  Otto,  714;  Cleveland. 

214,  217;  U.  S.  v.  Cruikshank.  2  Otto,  Painesville  &  Ash.  R.  R.  Co.  v.  Penn. 

542,  550;  Crandall  v.  Nevada,  6  Wall,  sylvania,  15  Wall.  300;  Foster  v.  Glast 

35,  43;   Cohens  v.  Virginia,  6  Wheat.  ener,  27  Ala.  391. 
414,  419. 


UNITY    AND    DUALITY    OF    OUR    GOVERNMENT.  11 

other,  would  be  common  alike  to  all,  and  none  would  be  either 
sovereign  or  independent  in  their  accustomed  domestic  and 
internal  affairs. 

But  notwithstanding  this  sovereignty  of  the  several  States, 
within  their  territorial  limits,  yet  that  sovereignty  is  limited  and 
restricted  .therein  by  the  national  Constitution;  for  the  powers 
of  the  States  and  of  the  national  government,  both  exist,  and 
are  exercised,  within  the  territorial  limits  of  the  respective  States, 
as  separate  and  distinct  sovereignties,  acting  separately  and  inde- 
pendently of  each  other  within  their  respective  spheres,  and 
making  therein  a  duality  of  government. ^  But  the  sphere  of 
action  of  the  national  government  is  as  far  beyond  tlie  judicial 
powers  of  the  State  courts,  as  if  the  divisional  line  of  power  was 
marked  out  by  land-marks  and  boundaries  visible  to  the  eye,  and 
sensible  to  the  touch.  And  so  are  the  processes  of  each  within 
their  spheres  of  action.  Neither  may  intrude  upon  the  other; 
within  their  proper  limits  or  spheres  of  power  and  authority 
neither  is  responsible  to  the  other;  but  in  cases  of  con- 
flict of  authority,  if  any  such  occur,  the  authority  of  the 
United  States  is  supreme  over  all,  so  far  as  is  necessary  to  sus- 
tain and  preserve  the  rightful  supremacy  of  the  national  Consti- 
tution, courts  and  laws.^  This  power  results  to  the  Federal 
courts  from  the  fact  that  the  Constitution  of  the  United  States, 
and  the  laws  passed  in  pursuance  thereof,  are  declared  by  the 
Constitution  itself  to  be  the  supreme  law  of  the  land,  and  the 
judges  of  every  State  are  bound  thereby,  "  anything  in  the  con- 
stitution or  laws  of  any  State  to  the  contrary  notwithstanding.''^ 
If  conflicts  of  power  or  jurisdiction  unhappily  arise,  the  national 

'  Pennoyer  v.  Neff,  5  Otto,  714;  In  ment  of  the  United  States,  within  the 

re  Steamboat  Josephine,  39  N.  Y.  19,  scope  of  its  powers,  operates   upon 

24.  every  foot  of  territory  under  its  juris- 

2  Tarble's  Case,  13  Wall.  397,  406,  diction.    It  legislates  for  the  wliole 

407;  U.  S.«.  Keokuk,  6  Wall.  514,516;  nation,  and  is  not  embarrassed   by 

Riggs  «.  Johnson  Co.,  6  Wall.  166, 195,  State  lines.    Its  peculiar  duty  is  to 

196 ;  Duncan  «.  Darst,  1  How.  301,  protect  one  part  of  the  country  from 

310;  The  Moses  Taylor,  4  Wall.  411 ;  encroachments  by  another,  upon  the 

Sinnot  v.  Davenport,  22    How.  227 ;  national  rights  which  belong  to  all." 

Pennoyer  v.  Neff,  5  Otto,  714,  733;  ^  14^11  amendment;  Tarble's  Case,  13 

Pensacola  Telegraph  Co.  v.  Western  Wall.  397,  406 ;  Sinnot  v.  Daveuport, 

Union  Telegraph  Co.,  6  Otto,  1  and  10.  23  How.  227;    Pennoyer  «.  Neff,  5 

In  the  case  last  cited  the  United  States  Otto,  714,  733. 
Supreme  Court  say:    "The  govern. 


12      CONCURRENT  JURISDICTION  —  OPPOSING  PROCESS. 

authority  has  supremacy,  and  the  questions  are  to  be  decided  by 
national  courts.  ^ 

Concurrent  Jxirisdiction.  Where  there  is  concurrent  power  in 
the  courts,  as  on  some  subjects  there  is,  the  general  rule  of  law 
is  that  the  tribunal  which  first  obtains  jurisdiction  of  the  sub- 
ject matter  of  the  suit  or  particular  case,  will  retain  and  dispose 
of  it;  but  to  this  there  is  the  exception  which  allows  certain  suits 
to  be  removed  from  the  State  courts  to  the  circuit  courts  of  the 
United  States.  ^ 

Opposing  Process.  And  so  where  processes  from  different 
courts,  State  and  Federal,  are  attempted  to  be  levied  upon  prop- 
erty of  a  common  defendant,  the  first  levy  accompanied  with 
actual  possession  places  the  property  in  legal  custody,  and  will 
be  respected.  3 

If  this  rule  of  law  be  violated,  and  property  levied  on  and  re- 
duced to  possession,  by  the  Marshal  of  the  United  States,  on 
process  from  a  United  States  court,  be  taken  out  of  his  posses- 
sion by  a  sheriff,  on  the  process  or  orders  of  a  State  court,  the 
remedy  therefor,  of  the  Marshal,  or  plaintiff  in  the  writ  under 
which  he  held  the  property,  is  not  by  injunction  from  the  United 
States  court  to  restrain  the  illegal  interference  simply  as  such, 
but  the  remedy  is  at  law,  by  action  of  trespass  against  the  sheriff, 
-or  by  an  attachment  against  that  officer  from  the  United  States 
court,  to  enforce  the  proper  deference  to  its  process  and 
authority.* 

And,  npon  the  same  principle,  money  in  the  hands  of  an  offi- 
cer of  the  United  States,  and  which  he  holds  for  purposes  of  dis- 
bursement under  the  national  law,  cannot  be  reached  by  garnishee 
process  from  a  State  court,  in  behalf  of  a  creditor  of  one  to  whom 
such  money  is,  by  law,  about  to  be  paid.''     Thus,  where  a  purser 

>  Tarble'9  Case,  13  Wall.  397,  407;  Holman,  28  Iowa, 88, 105;  Chittenden 

V.  8.  V.  Keokuk,  6  Wall.  514;  Riggs  v.  Brewster,  2  Wall.  191, 197 ;  Smith  v. 

V.  Johnson  Co.,  6  Wall.  166;  The  Mo-  Mclver,  9  Wheat.  533. 

ses  Taylor,  4  Wall.  411 ;  Sinnot  v.  Dav-  »  Taylor  v.  Caryl,  20  How.  583,  594 ; 

enport,  22  How.  227 ;  Pensacola  Tele-  Freeman  v.  Ilowe,  24  How.  450 ;  Buck 

graph  Co.  e. Western  Union  Telegraph  v.  Colbath,   3  Wall.  334;   Hagan  v. 

Co.,  6  Otto,  1, 10.  Lucas,  10  Pet.  400. 

^  Shelby   v.  Bacon,    10   How.   56 ;  *  Cookendorfcr  v.  Preston,  4  How. 

Oreen  v.  Creighton,  23  How.  90 ;  Peale  317. 

V.  Phipps,  14    How.  368;    Riggs  v.  "Buchanan  v.  Alexander,  4  How. 

Johnson  Co.,  6  Wall.  106, 196 ;  Exparte  20. 


SEVERAL    EXECUTIONS.  13- 

in  the  United  States  Navy  held  moneys  payable  to  certain  sea- 
men as  wages,  was  garnished,  by  State  process,  at  the  suit  of  a 
boarding-house  keeper,  to  whom  such  seamen  were  indebted  for 
board,  the  Supreme  Court  of  the  United  States  held  that  the 
money  was  the  money  of  the  government  until  paid  over  by  the 
purser,  and  therefore  the  process  of  garnishee  would  not  lie,  and 
also  for  the  reason  that  such  proceeding  is  calculated  to  obstruct  or 
suspend  the  functions  of  government,  for  that,  if  allowable,  it 
might  equally  extend  to  all  the  monetary  relations  of  the  gov- 
ernment and  its  distributing  agents.  ^ 

So  goods  imported,  but  not  yet  entered  in  a  custom  house  of 
the  United  States,  are  not  liable  to  attachment  or  other  State 
process  against  them  or  their  owner.  They  are  in  the  custody 
of  the  United  States,  and  can  only  be  removed  from  such  custody 
by  the  persons,  and  in  the  manner,  contemplated  by  the  acts  of 
Congress.  Every  proceeding  interfering  with,  or  disturbing  that 
custody,  is  unlawful. 2 

The  first  levy  of  goods  and  chattels,  whether  under  State  or 
Federal  process,  places  the  property  in  the  custody  of  the  law, 
and  withdraws  it  from  liability  to  the  process  of  the  other.  By 
the  levy  a  special  property  in  the  goods  is  vested  in  the  officer, 
and  he  may  maintain  an  action  for  them,  if  deprived  of  their 
custody.  Hence  two  levies  under  difierent  authorities  are  in- 
compatible, for  the  property  cannot,  at  the  same  time,  vest  in 
both  the  officers.  3 

Several  Executions  held  by  the  Same  OflBcer,  or  by  Different 
Oflacers.  An  officer  levying  and  having  two  or  more  executions,, 
against  the  same  defendant,  if  no  legal  preference  attach  to  either, 
may  levy  both  uj)on  the  same  goods,  and,  there  being  no  priority 
on  either,  the  proceeds  will  be  proportionately  applied  on  both 
(or,  if  there  be  priority,  the  court,  if  requested,  may  apply  the 
funds);  and,  if  a  levy  has  first  been  made  on  one  writ,  and  an- 
other comes  afterwards  into  an  officer's  hands,  he  may  apply  any 
surplus  proceeds,  after  satisfying  the  first,  upon  the  latter 
writ.^ 

But,  in  case  the  writs  are  held  by  difierent  officers,  this  be- 
comes, in  a  manner,  impracticable,  and  more  especially  so  where 

'  Buchanan  v.  Alexander,  4  How.  20.      v.  Clarke,  4  How.  4 ;  Freeman  v.  Howe^ 

2  Harris  v.  Dennie,  3  Pet.  293.  24  How.  450. 

8  Ilagan  v.  Lucas,  10  Pet.  400 ;  Brown         *  Hagan  v.  Lucas,  10  Pet.  400,  403. 


14       THE  JURISDICTION  FIRST   ATTACHING  CONTROLS. 

tlie  writs  aud  the  officers  represent  and  rest  for  their  authority 
upon  different  jurisdictions,  as  where  one  is  an  officer  of  a  State 
court  and  the  otlier  an  officer  of  a  Federal  court,  and  each  hold- 
ing a  writ  or  writs  against  the  same  execution  defendant.^ 

Exempt  Property,  if  Levied  on.  Recoverable  by  Suit.  Though 
property  levied  on  lawfully  by  an  officer  of  a  United  States  court 
cannot  be  levied  on  by  State  process  while  thus  in  the  hands  of 
the  Marshal,  yet  it  has  been  held  that,  if  the  levy  be  illegal  or 
wrongful,  as  where  the  property  levied  on  execution  is  exempt  by 
law  from  execution,  levy  and  sale,  that  the  debtor  owner  of  the 
property  may  maintain  an  action  in  the  State  court,  against  the 
Marshal  personally,  for  the  property.  ^ 

The  Jurisdiction  first  Attaching  Controls.  "Where  a  State  or  a 
Federal  court  first  obtains  jurisdiction  of  a  subject  matter  of 
litigation,  of  which  these  courts  have  concurrent  jurisdiction  in 
law,  the  court  in  which  jurisdiction  thus  actually  attaches,  draws 
to  itself  all  the  attributes  of  the  case,  and  is  entitled  to  exclusive 
control  and  jurisdiction  to  determine  and  dispose  of  the  whole 
case.  Therefore,  if  the  defendant  therein  be  subsequently  im- 
pleaded, of  the  same  subject  matter  in  a  State  court,  he  may  suc- 
cessfully plead  the  pendency  of  the  proceedings  in  the  Federal 
court  in  bar  of  the  action  or  proceedings  in  the  State  court. ^  And 
if  he  be  sued  as  a  trustee,  he  is  bound  so  to  plead,  or  else  account 
for  any  loss  that  occurs  from  omitting  such  duty.* 

Therefore,  in  cases  within  the  concurrent  jurisdiction  of  the 
State  and  national  courts,  where  jurisdiction  first  attaches  over 
the  subject  matter  of  the  particular  case,  in  the  Federal  court, 
the  defendant  therein,  if  sued  afterwards,  in  the  ?ame  matter,  in 
&  State  court,  may  plead  the  pendency  of  the  suit  in  the  Federal 
court  in  bar  of  the  action  in  the  State  court,  and  such  plea  is 
effectual  in  law.  If  the  ruling  in  the  State  court  be  against  the 
validity  of  the  plea,  then  the  defendant  has  a  remedy  by  writ  of 
error  or  appeal,  as  the  case  may  be,  to  the  Supreme  Court  of  the 
United  States,  under  the  twenty-fifth  section  of  the  judiciary  act.  ^ 

So,  where  an  assignee,  for  the  benefit  of  an  insolvent's  cred- 
itor, is  first  brought  into  a  United  States  court,  by  a  bill  in 

>  Hagan  v.  Lucas,  10  Pet.  400. 
»  Oilman  t>.  Williams,  7  Wis.  329.  *  Ibid. 

«  Chittenden  v.  Brewster,  2  Wall         •  Ibid. 
191, 197. 


CASES    OF    CONFLICT.  15 

equity  to  set  aside  the  assignment  as  fraudulent,  tiled  therein  be- 
fore the  institution  of  any  proceeding  against  him,  on  the  same 
subject,  in  a  State  court,  and  after  being  thus  impleaded  in  the 
federal  court,  he  is  sued  in  a  State  court  in  reference  to  the 
same  subject  matter,  he  may  not  only  thus  defend,  successfully, 
by  pleading  to  the  latter  proceeding  the  pending  suit  in  the  Fed- 
eral court,  but  is  bound  so  to  do,  or  else  be  held  responsible  in 
the  Federal  court  for  the  consequences,  or  losses,  incurred  to  the 
trust  fund  by  omitting  so  to  do.i 

In  Cases  of  Conflict  United  States  Supreme  Court  the  Arbiter. 
The  ultimate  decision  in  cases  of  conflict,  or  doubtful  right,  as 
to  the  correlative  powers  of  the  Federal  and  State  courts,  is  the 
appellate  power  of  the  Supreme  Court  of  the  United  States;  in 
all  matters  touching  these  powers,  the  decision  of  this  tribunal, 
within  the  pale  of  its  jurisdiction,  is  supreme. ^ 

State  courts  have  no  control  whatever  over  the  officers  and 
agents  of  the  national  government,  as  to  the  discharge  of  their 
duties  or  powers,  and  cannot  by  writs  of  mandamus  enforce  per- 
formance of  acts  pertaining  thereto,  ^  nor  restrain  the  same  by 
injunctions.* 

In  Ex  parte  McNiel^  the  Supreme  Court  of  the  United  States, 
speaking  of  these  correlative  powers  of  the  Federal  and  State 
governments,  and  the  regulation  thereof,  say:  "In  the  complex 
system  of  polity  which  prevails  in  this  country,  the  powers  of 
government  may  be  divided  into  four  classes.  Those  wliicli  be- 
long exclusively  to  the  States.  Those  which  belong  exclusively 
to  the  national  government.  Those  which  may  be  exercised  con- 
currently and  independently  b^^  both.  Those'  which  may  be 
exercised  by  the  States,  until  Congress  shall  see  tit  to  act  upon 
the  subject.  The  authority  of  the  State  then  retires  and  lies  in 
abeyance  until  the  occasion  for  its  exercise  shall  recur."  ^  In 
illustration  of  these  principles,  that  court  holds  that  the  com- 
mercial power  vested  in  Congress  by  the  Constitution  is  partly 
of  this  last  character.  That  some  of  the  rules  necessary  in  the 
regulation  of  that  subject,  from  the  nature  of  things,  must  be 
uniform  throughout  the  country;  and  that  to  that  extent  the 

1  Chittenden  v.  Brewster,  3  "Wall.  *  McClung  «.  Silliman,  6  Wheat. 
191.  598. 

"  Ex  parte  Holman,  28  Iowa,  88.  *  Riggs  v.  Johnson  Co.,  6  Wall.  16G. 

« 13  Wall.  236. 


16  INJUNCTIONS RELATIVE    POWERS. 

power  to  make  tbem  must  necessarily  be  exclusively  in  Congress, 
as  clearly  so  as  if  expressly  declared.  That  others  may  be  allowed 
to  vary,  with  varying  circumstances  and  differences  of  locality. 
That  in  the  latter  cases,  the  States  may  prescribe  the  rules  to  be 
observed,  until  Congress  shall  supersede  them  by  its  own  enact- 
ments, made  in  virtue  of  the  national  Constitution,  which  is  the 
supreme  law.^ 

Injunctions.  State  courts  cannot,  by  injunction  or  otherwise, 
stay  or  arrest  the  processes,  or  jurisdiction,  of  a  United  States 
court,  or  in  any  manner  interfere  therewith.  It  is  not  by  reason 
of  paramount  jurisdiction  of  the  Federal  courts  that  this  can- 
not be  done,  but  because  in  their  sphere  of  action  the  Federal 
courts  are  independent  of  the  State  tribunals. ^  So,  for  the  same 
reason.  State  courts  are  exempt  from  all  interference  of  the  Fed- 
eral tribunals.'  The  United  States  circuit  courts,  and  the  State 
courts,  act  separately  and  independently  of  each  other,  and,  in 
the  language  of  the  United  States  Supreme  Court,  "  in  their  re- 
spective spheres  of  action,  the  process  issued  by  the  one  is  as  far 
beyond  the  reach  of  the  other  as  if  the  line  of  division  between 
them  was  traced  by  land-marks  and  monuments  visible  to  the 
eye."*  This,  too,  although  their  action  be  within  the  same  terri- 
torial limits. 

Eelative  Powers.  The  national  Constitution  has  clearly  and 
wisely  defined  the  respective  spheres  of  these  State  and  national 
judiciaries,  and  their  relative  subordination  to,  or  supremacy  of, 
each  other,  by  an  express  grant  of  the  powers  of  the  national 
courts,  thereby  indicating  with  equal  clearness  and  wisdom  those 
appertaining  to  the  courts  of  the  States,  in  this,  that  by  the  same 
instrument  it  is  declared  that:  "The  powers  not  delegated  to  the 
United  States  by  the  Constitution,  nor  prohibited  by  it  to  the 
States,  are  reserved  to  the  States,  respectively,  or  to  the  people.""* 

This  clause  evidently  refers  as  well  to  judicial  powers  as  to 
others,  and  the  deduction  therefrom  is  that  when  the  judicial 

'  Ex  parte  McNiel,  13  Wall.  236.  409,  414 ;  The  Supervisors  v.  Durant,  9 

s  Riggs  V.  Johnson  Co.,  6  Wall.  166 ;  Wall.  415 ;  U.  S.  v.  Peters,  5  Cr.  115. 

Ex  parte  Holman,  28  Iowa,  88 ;  Dig?3         «  Riggs  v.  Johnson  Co.,  6  Wall.  1G6 ; 

T.  Wolcott,  4  Cr.  178  (such  procedure  Ex  parte  Holman,  28  Iowa,  88. 

is  prohibited  by  act  of  Congress,  1  *  Riggs  t).  Johnson  Co.,  6  Wall.  166, 

Stat,  at  Large,  335) ;  Duncan  v.  Darst,  195,  196. 

1  How.  301 ;  Peck  v.  Jenness.  7  How.  *  10th  Amendment  to  tlie  Constitu- 

612,  625 ;  The  Mayor  v.  Lord,  9  Wall.  tion. 


RELATIVE    POWERS,  17 

powers  which,  by  the  Constitution,  are  expressly  granted  to  the 
United  States  courts,  are  stated  and,  enumerated,  then  all  other 
rightful  judicial  powers  of  republican  governments  are  to  be  rec- 
ognized as  remaining  with  the  States,  and  are  in  the  courts 
thereof,  respectively,  so  far  as  their  exercise  has  been  authorized 
by  the  resj)ective  State  legislatures  and  constitutions;  or  unless 
modified  or  restricted  by  some  express  prohibition  of  the  Consti- 
tution of  the  United  States. 

To  enumerate  these  grants,  then.  By  Section  2  of  Article  III. 
of  the  Constitution,  it  is  declared  that:  "  The  judicial  power 
shall  extend  to  all  cases  in  law  and  equity  arising  under  this 
Constitution,  the  laws  of  the  United  States,  and  treaties  made, 
or  which  shall  be  made,  under  their  authority;  to  all  cases  affect- 
ing ambassadors,  other  public  ministers  and  consuls;  to  all  cases 
of  admiralty  and  maritime  jurisdiction;  to  controversies  to  which 
the  United  States  shall  be  a  party;  to  controversies  between  two 
or  more  States;  between  a  State  and  citizens  of  another  State, 
between  citizens  of  different  States,  between  citizens  of  the  same 
State  claiming  lands  under  grants  of  different  States,  and  between 
a  State,  or  citizens  thereof,  and  foreign  States,  citizens  or  subjects. 
In  all  cases  affecting  ambassadors,  other  public  ministers  and 
consuls,  and  those  in  which  a  State  shall  be  a  party,  the  Supreme 
Court  shall  have  original  jurisdiction.  In  all  the  other  cases, 
before  mentioned,  the  Supreme  Court  shall  have  appellate  juris- 
diction, both  as  to  law  and  fact,  with  such  exceptions,  and  under 
such  regulations,  as  the  Congress  shall  make." 

Here,  then,  is  the  extent  of  the  national  judicial  power.  All 
else,  except  where  prohibited,  remains  in  the  States;  and  except 
such,  if  any,  as  may  be  conferred  by  subsequent  constitutional 
amendments.  How  this  grant  of  power  has  been  distributed  by 
Congress,  among  the  several  national  courts,  is  not  material  to 
this  treatise,  other  than  in  a  general  way,  as  our  more  immediate 
purpose  is  to  treat  of  the  inter-State  relation  and  distribution  of 
the  judicial  powers,  as  between  the  State  and  national  judiciaries, 
and  also,  as  to  the  inter-State  relations  of  the  several  States 
themselves,  and  their  courts,  toward  each  other,  and  not  to  the 
practical  or  administrative  exercise  thereof  by  the  courts  of  either 
the  one  or  the  other,  further  than  may  incidentally  become 
necessary  in  prosecuting  the  main  purpose  of  this  work. 

2 


18  DOMESTIC    CHARACTER  OF   JUDGMENTS. 

Domestic  Character  of  Judgments.  Jiidf^ments  of  the  national 
courts  are  not  foreign  to  the  courts  of  the  respective  districts, 
nor  are  tliey  foreign  in  their  relation  to  the  courts  of  the  several 
States:  but  are  domestic  and  homocrenous  throuffhout  the  na- 
tion,  in  like  manner  as  those  of  the  State  courts  are  throughout 
the  States  in  ■which  they  are  rendered.^ 

The  judgments,  decrees  and  proceedings  of  the  national  courts 
prove  themselves  everywhere  by  the  seal  of  the  court  from  which 
tliey  emanate,  and  need  no  such  additional  authenticity  as  the 
judge's  certificate,  or  other  evidence  of  their  genuineness,  tlian  a 
certificate  of  the  clerk  and  the  seal  of  the  court.  These  are  prima 
facie  evidence  of  their  validity  in  all  other  American  courts, 
State  and  national.  They  do  not  come  within  the  provisions  of 
Section  1  of  the  4th  Article  of  the  Constitution,  or  the  act  of 
Congress  relative  to  the  authentication  of  records  and  judicial 
proceedings  of  the  several  States,  in  each  State,  but  are  of  them- 
selves entitled  to  full  faith  and  credit  in  every  State  and  Terri- 
tory, and  wherever  our  national  jurisdiction  extends,  and  in 
every  department  thereof.  ^ 

In  like  manner  the  records  and  proceedings  of  the  State  and 
Territorial  courts,  certified  and  authenticated  by  the  clerk,  and 
seal  of  the  court,  so  as  to  give  them  authenticity  in  the  courts 
of  the  same  State,  will  also  give  them  authenticity  and  credit  in 
the  courts  of  the  United  States,  without  the  particular  authenti- 
cation prescribed  by  act  of  Congress  in  respect  to  their 
authentication  for  use  in  the  courts  of  another  State;  for  the  act 
of  Congress  in  that  respect  is  not  applicable  to  the  records  and 
proceedings  certified  from  a  State  to  a  Federal'court,  these  courts 
not  being  foreign  to  each  other,  as  the  State  courts  of  the  difier- 
ent  States  are.' 

Trial  by  Jury.  Private  Property  for  Public  Use.  The  provis- 
ion of  the  United  States  Constitution  that  secures  the  right  of 

'  Ex  parte  Scbollenberger,  6  Otto,  Cases,  326 ;  Murray  v.  Marsh,  2  Hay  w. 

309,  376,  379,  may  be  cited  as  bearing  ( N.  C.)    290 ;    Buford  «.   Hickman, 

upon  this  subject.  Hempst.  232;  Mason  d.  Lawrason,  1 

2  Article  4,  Cons.  U.  S.;  Thomson  t.  Cr.  C.  C.  190;  Mewster  t>.  Spalding,  6 

Lee  Co.,  22  Iowa,  206 ;  Reed  I!.  Ross,  1  McLean,    24;    Bennett    v.    Bennett, 

Bald.  C.  C.  36 ;  Niblet  e.  Scott.  4  La.  Deady,  299 ;  Dean  v.  Chapin,  22  Mich. 

Ann.  245 ;  St.  Albans  v.  Bush,  4  Vt.  275. 

68 ;  Barney  v.  Patterson,  6  Harr.  &  J.         *  Mewster  «.  Spalding,  6  McLean, 

182;  U.  S.  V.  Wood,  2  Wheeler's  Cr.  24;  Bennett  v.  Bennett,  Deady,  299. 


TRIAL    BY    JURY CITIZENSHIP.  19 

trial  by  jury,  has  reference  to  trial  in  courts  of  the  United  States, 
and  not  to  those  of  the  several  States. ^  Likewise  the  provision 
that  private  property  shall  not  be  taken  for  public  use,  vrithout 
compensation  therefor.  This  inhibition  binds  the  Federal  gov- 
ernment only,  and  is  not  obligatory  upon  the  governments  of 
the  States.  3  In  the  case  here  referred  to,  of  Barron  v.  Mayor ^ 
etc.,  of  Baltimore,  the  Supreme  Court  of  the  United  States, 
Makshall,  C.  J.,  say:  "The  Constitution  was  ordained  and  es- 
tablished by  the  people  of  the  United  States  for  themselves,  for 
their  own  government,  and  not  for  the  government  of  the  indi- 
vidual States.  Each  State  established  a  constitution  for  itself, 
and  in  that  constitution  provided  such  limitations  and  restric- 
tions on  the  powers  of  its  particular  government  as  its  judgment 
dictated."3 

2.  Citizenship  and  Allegiance.  The  Constitution  of  the 
United  States  declares  that  all  persons  born  or  naturalized  in  the 
United  States,  and  subject  to  the  jurisdiction  thereof,  are  citizens 
of  the  United  States,  and  of  the  State  wherein  they  reside.* 

This  amendatory  declaration  but  reflects  the  prior  annuncia- 
tions of  the  Supreme  Court,  in  respect  to  the  citizens  of  the 
United  States  being,  in  virtue  thereof,  citizens  of  the  States  in 
which  they  reside.  ^  In  the  case  here  cited,  of  Gassies  v.  Ballon, 
the  party  alleged  that  he  was  a  naturalized  citizen  of  the  United 
States,  and  resided  in  the  State  of  Louisiana.  The  allegation 
was  held  to  be  equivalent  to  an  averment  direct  that  the  party 
making  it  was  a  citizen  of  the  State  of  Louisiana.  Marshall, 
Ch.  J.,  in  delivering  the  opinion  of  the  court,  said:  "A  citizen 
of  the  United  States,  residing  in  any  State  of  the  Union,  is  a  cit- 
izen of  that  State." ^  Thus  the  citizenship  of  the  State,  where 
resident,  is  recognized  as  flowing  from  that  of  citizenship  of  the 
United  States,  both  by  the  Federal  ruling  of  the  Supreme  Court, 
and  by  the  Constitution  as  subsequently  amended,  being  a  reflex 
of  the  unity  of  government  and  national  supremacy  referred  to 
in  the  preceding  section  of  this  chapter.     Or,  as  Chief  Justice 

1  Proffatt  on  Trial  by  Jury,  §  83;         "7  Pet.  247. 
Livingston  v.  Mayor  of  New  York,  8         *  Article  14,  §  1,  of  Amendments  to 

Wend.  85, 100 ;  Colt  ■».  Eves,  12  Conn,  the  Constitution. 
243.  '  Gassies  v.  Ballon,  6  Pet.  761". 

*  Barron,  etc.  v.  Mayor,  etc.,  of  Bal-         « Ibid, 
timore,  7  Pet.  243. 


20  SUITS    BETWEEN    TWO    OR   MORE    STATES. 

Marshall  expresses  it,  "  Tlie  national  and  State  system  are  to  bo 
regarded  as  one  whole."  Tliis  supremacy  and  sovereign  unity 
of  government,  in  a  national  point  of  view,  is  still  more  strongly 
indicated  in  the  oath  of  allegiance  required  by  law  of  Congress 
to  be  administered  to  persons  when  being  naturalized.  The  sworn 
allegiance  is  that  he  will  support  the  Constitution  of  the  United 
States,  and  not  of  any  State. 

3.  Suits  between  Two  or  More  States.  In  suits  between 
two  States,  involving  a  civil  controversy,  the  Constitution  vests 
the  jurisdiction  exclusively  in  the  Supreme  Court  of  the  United 
States.  1 

Such  jurisdiction  is  limited  to  civil  controversies,  as  contra- 
distinguished from  those  of  a  political  nature.  It  is  necessary 
that  some  right  of  property,  or  pecuniary  interest,  or  value,  be 
involved  for  determination  of  the  court.  Mere  political  inter- 
ests or  questions  will  not,  alone,  confer  jurisdiction,  for  such  are 
not  the  subject  of  judicial  investigation  or  control,  as  has  been 
shown  in  Chapter  I.  of  this  work.  The  political  right  to  be  a 
State  cannot  be  determined  in  any  court.  Such  questions  do 
not  come  within  the  compass  of  judicial  authority,  but  are  to  be 
determined  by  the  political  departments  of  the  government.  ■  So, 
in  regard  to  the  right  of  a  State  to  be  a  member  of  the  American 
Union.  In  all  these  cases,  the  action  of  the  political  depart- 
ments —  the  President  and  Congress  of  the  United  States  —  de- 
termines the  matter,  and  will  be  accepted  and  conformed  to  by 
the  courts,  as  a  finality.  But  where  the  proper  element  of  juris- 
diction is  present  in  a  cause,  jurisdiction  thus  far  will  not  be 
prevented  by  the  presence  of  political  elements. ^ 

J  §  2,  Art.  3,  Cons,  of  U.  S. ;  Rhode  v.  Blacksmith,  19  How.  866 ;  Foster  ». 

Island  V.  Massachusetts,  12  Pet.  657.  Neilson,  2  Pet  253;  Garcia  v.  Lee,  12 

'Georgia  v.  Stauton,  6  Wall.  74;  Pet.  511 ;  Williams  d.  Suffolk  Ins.  Co., 
Georgia  v.  Johnson,  4  Wall.  500 ;  13  Pet.  415 ;  Luther  v.  Borden,  7  How. 
Rhode  Island  v.  Massachusetts,  12  1 ;  Scott  v.  Jones,  5  How.  343.  The 
Pet.  657,  755;  New  Jersey  u.NewYork,  State  must  be  a  party  on  the  record. 
3  Pet.  461,  and  5  Pet.  284;  Kentucky  Osborn  v.  Bank  of  U.  S.  9  Wheat  738. 
V.  Ohio,  24  How.  66;  Florida  v.  Geor-  But  a  suit  against  a  governor  of  a 
gia,  17  How.  478;  Missouri  v.  Iowa,  7  State,  as  such,  answers  this  require- 
How.  660,  and  10  How.  1 ;  Cherokee  ment  Governor  of  Georgia  v.  Man- 
Nation  V.  Georgia,  5  Pet  1;  Fellows  drazo,  1  Pet  110. 


SUIT    AGAINST    A    STATE.  21 

4.  Suit  Against  a  State  by  a  Citizen  of  Another  State.  Upon, 
general  principles,  a  sovereign  State  cannot  be  sued,  unless  by 
consent,  1 

The  second  section  of  the  third  article  of  the  national  Consti- 
tution, however,  as  originally  adojDted,  rendered  the  States 
suable,  not  only  as  against  each  other,  but  at  the  suit  of  citizens 
of  other  States,  and  vested  jurisdiction  of  such  cases  in  the 
Supreme  Court.^  But,  by  subsequent  amendments  of  the  Con- 
stitution, the  suing  of  a  State  in  the  courts  of  the  United  States 
is  entirely  inhibited,  except  in  cases  of  suits  between  two  or 
more  States.  ^  Thus  the  right  of  one  State  to  sue  another  still 
remains,  and  the  jurisdiction  of  such  suits  is  exclusive  in  the 
Supreme  Court,  as  we  have  seen  in  the  preceding  section  of  this 
chapter. 

'  Beers  v.  Alabama,  20  How.  527;  'Art.  XI.  of  Amendments  to  the 

Briscoe  v.  Bank  of  Kentucky,  11  Pet.  Constitution  of  the  U.  S. 

257 ;  Bank  of  Washington  c.  Arkan-  '  Hollingsworth  v.  Virginia;  3  Dall. 

sas,  20  How.  530.  378. 


32  INTER- STATE    RIGHTS    OP    SUIT. 


CHAPTER  IV.. 

INTER-STATE  EIGHTS  OE   SUIT — JURISDICTIONAL  REQUISITES. 

I.  A  Constitutional  Right,  as  well  as  by  Comity. 

II.  Peksonal  Jurisdiction:  When  Necessary. 

III.  Proceedings  in  rem. 

IV.  Sealed  and  Unsealed  Instruments. 

V.    Non-Residents  Personally  Suable  if  Found  and  Served. 
VI.    Jurisdiction  Obtained  by  Fraud. 

VII.    Foreign  Corporations,  Executors  and  Administrators. 
VIII.    Service  on  a  3Iember  of  a  Firm  as  against  a  Non-Resident  Mem- 
ber Thereof. 

1.  A  Constitutional  Bight,  as  well  as  by  Comity.  Not  only  as 
matter  of  comity,  which  under  the  unity  of  our  national  govern- 
ment may  not  be  withheld,  but  also  in  virtue  of  the  2d  section 
of  the  4th  article  of  the  Constitution,  which  declares  that  "  the 
citizens  of  each  State  shall  be  entitled  to  all  the  privileges  and 
immunities  of  citizens  in  the  several  States,"  and  which  adds  to 
comity  an  absolute  and  binding  law,  the  citizens  and  inhabitants 
of  each  State  have  a  right  to  sue,  and  are  liable  to  be  sued,  in 
the  courts  of  all  the  States,  in  all  such  actions  and  suits  in  law 
and  in  equity  as  in  their  nature  come  within  the  sphere  of  inter- 
State  jurisdiction.  1 

2.  Personal  Jurisdiction :  When  Necessary.  But  to  sustain 
a  personal  judgment  against  a  defendant,  personal  jurisdiction 
must  be  had,  either  by  appearance  or  by  personal  service  of 
process,  made  within  the  territorial  limits  of  the  State  where  suit 
is  brought;  and  non-residence  is  no  objection  to  such  jurisdic- 
tion where  personal  service  is  thus  made.^ 

Personal  Jurisdiction,  Is  not  attainable  in  the  courts  of  one 
State  against  a  citizen  or  resident  of  another  State  by  personal 

'  Story  on  the  Constitution,  §§  1805,  -without  jurisdiction  is  void.   Griffith 

1806;  Cooley's  Const.  Lim.  *15,  and  v.  Frazier,  8    Cr.   9;    Scliwinger  v. 

Note  4,  *16.  Hickoli,  53  N.  Y.  280;  Freeman  on 

»  Swan  V.  Smith,  26  Iowa,  87;  Board  Judgments,  §§  564,  566;  Lawrence  v. 

of  Public  Works  v.  Columbia   Col-  Jarvis,  82  111.  304. 
lege,    17  Wall.  521.    But  judgment 


PEOCEEDIlSrGS    IN    REM.  23 

service  of  process  made  in  such  other  and  different  State  than  the 
one  in  wliich  suit  is  sought  to  be  brought,  and  a  personal  judg- 
ment rendered  against  a  defendant  who  has  not  personally  ap- 
peared, or  otherwise  submitted  to  the  jurisdiction  of  the  court, 
and  upon  whom  no  other  service  of  process  than  the  above  has 
been  made,  is  null  and  void;  for  the  processes  and  laws  of  a  State 
have  no  extra-territorial  operation  or  force  as  against  citizens  or 
persons  residing  in  a  different  State.^  Nor  will  personal  juris- 
diction be  obtained  by  publication  of  notice  in  newspapers,  or 
other  publication  of  notice  against  or  to  such  non-resident  or  ab- 
sent defendant,  so  as  to  justify  or  sustain  a  personal  judgment 
against  him,  but  such  personal  judgment,  rendered  without 
other  jurisdiction  of  the  person  of  the  defendant  than  publica- 
tion, is  null  and  void,  as  well  where  rendered  as  elsewhere,  not- 
withstanding any  law  of  the  forum  authorizing  the  same;  for 
such  law  can  have  no  extra-territorial  force  to  affect  the  defend- 
ant personally  outside  the  jurisdiction  of  the  State  wherein  the 
judgment  is  rendered.^ 

3.  Proceedings  in  rem.  But  proceedings  in  rem,  may,  for 
any  just  cause,  be  prosecuted  against  the  property  of  a  non-resi- 
dent, situated  in  any  State,  by  proceedings  in  the  courts  of  the 
State  wherein  the  property  is  situated,  if  so  allow^ed  by  law,  upon 
such  publication  of  notice,  or  constructive  service,  as  is  the  prac- 
tice of  such  State,  and  judgment  against  the  property  may  be 
rendered  accordingly,  when  otherwise  justified  in  law,  for  such 
property  being  within  the  actual  jurisdiction  of  the  forum,  the 
power  of  the  State  and  its  courts  over  the  same  does  not  depend 
upon  personal  service  and  jurisdiction  of  the  defendant's  per- 
son ;3  but  no  personal  judgment,  in  such  proceeding,  there  hav- 

'  Bates  '0.  Chicago,  and  N.  W.  R.  R.  19  Iowa,  260,  262;  Board  of  Public 

Co..  19  Iowa,  260 ;  Hakes  «.  Shupe,  27  Works  x>.  Columbia  College,  17  Wall. 

Iowa,   465 ;    Weil    «.  Lowenthal,  10  521 ;    Griffith    v.    Frazier,    8    Cr.  9 

Iowa,575;Ablemanw.  Booth,  21  How.  Schwinger  t).  Hickok,  53  N.  Y.  280 

506;  Piatt  V.  Oliver,  2  McLean,  268;  Bischoff  «.  Wethered,    9  Wall.  812 

Westervelt  v.  Lewis,  Ibid.  511 ;  Lin-  Freeman     on    Judgments,     ^    127 

coin  «.  Tower,  Ibid.  473;   Kendall  v.  Storey's   Conf.  of  Laws,  g§  546  and 

U.  S.,  12  Pet.  526 ;   Herndon  v.  Ridg-  546a. 

way,  17  How.  424 ;  Griffith  v.  Frazier,  ^  Darrance  n.  Preston,  18  Iowa,  396 ; 

8  Cr.  9 ;  Freeman  on  Judgments,  §§  Banta  v.  Wood,  32   Iowa,  469 ;  The 

564,566.  Globe,    2    Blatchf.   427;   Thomas  v. 

«  Banta    75.  Wood,    32    Iowa,    469 ;  Southard,  2  Dana,  475. 
Bates  -0.  Chicago  &  N.  W.  R.  R.  Co., 


24  INTER-STATE    RIGHTS    OF    SUIT. 

ing  been  only  such  constructive  service,  will  be  valid,  and  no 
recovery  in  an  action  can  be  had  thereon,  anywhere.^  So  the 
same  right  and  liability,  of  suing  and  being  sued  in  the  cir- 
cuit courts  of  the  United  States,  exists  between  citizens  of  dif- 
ferent States,  where  the  amount  in  controversy,  and  citizenship 
of  the  parties,  or  other  legal  requisites,  are  shown,  which  bring 
the  same  within  the  jurisdiction  of  said  court.  But  to  sustain 
a  judgment  in  personam,  personal  service  must  be  had,  and  a 
citizen  of  one  State  cannot  be  arrested,  in  any  case,  on  civil 
process  from  such  circuit  court  in  a  different  State  than  that 
wherein  he  resides. ^ 

4.  Sealed  and  Unsealed  Instruments.  Interesting  questions 
sometimes  arise  as  to  the  character  in  which  an  instrument  made 
in  one  State,  and  sued  on  in  the  courts  of  another,  is  to  be  re- 
garded in  the  forum  of  the  latter  State;  as,  for  instance,  the  ques- 
tion as  to  whether  an  instrument  is  sealed  or  not,  will  govern 
the  nature  of  the  action  brought  thereon. 

Thus,  in  some  States  a  mere  scroll  is  by  law  given  the  import 
and  force  of  an  actual  seal ;  in  others  an  actual  or  real  seal  is  re- 
quired, as  an  impression  on  wax,  or  other  impressible  substance; 
and  yet,  in  others  still,  seals  are  abolished  entirely. 

Now,  in  an  action  on  such  instruments  in  the  courts  of  the 
State  where  made,  no  difficulty  may  arise  in  relation  to  their  true 
character;  but  when  sued  on  in  the  court  of  a  different  State, 
where  the  rule  of  local  law  as  to  a  seal  varies  from  that  where 
the  instrument  was  made,  the  question  arises  at  once  as  to 
whether  the  local  law,  that  is  the  law  of  the  forum,  shall  pre- 
vail, or  that  of  the  State  wherein  the  instrument  was  made,  shall 
govern  in  giving  character  to  it,  as  a  sealed  or  an  unsealed  in- 
strument—  for,  if  a  sealed  instrument,  it  is  a  deed,  or  writing 
obligatory,  and  suit  must  be  in  covenant  or  debt,  but  if  unsealed, 
then  it  is  but  a  simple  contract,  and  assumpsit  will  lie.  Tlie  Su- 
preme Court  of  the  United  States  hold  that,  notwithstanding  the 
general  law,  the  lex  loci  contractus  governs  as  to  the  obligation 
and  character  of  an  instrument,  when  not  made  performable 
elsewhere;    that  nevertheless,  without  impairing  the  obligation 

'  Boswell  «.  Otis,  9  How.  336;  Lin-      502;  Westervelt  v.  Lewis,  2  McLean, 
coin  V.  Tower,  2  McLean,  473;  War-      511 ;  Banta  v.  Wood,  32  Iowa,  469. 
ren  Manf.  Co.  v.  Etna  Ins.  Co.,  2  Paine,  ^  See  Revised  Statutes  of  U.  S.  of 

1874.  p.  139,  §  739. 


NON-EESIDENTS    PERSONALLY    SUABLE,  2o 

of  that  rule,  in  enforcing  a  remedy  on  it  elsewhere,  the  law  of 
the  forum,  or  place  where  the  suit  is  brought,  prevails,  and  it  is 
to  be  treated  as  sealed  or  unsealed  accordingly  as  it  would  be  if 
^ade  in  the  State  where  the  suit  is  pending. i 

Thus,  the  law  of  New  York  requires  an  actual  seal  of  wafer 
or  wax, 2  and,  if  not  so  sealed,  the  form  of  action  on  an  instru- 
ment is  assumpsit.  3  By  the  law  of  Wisconsin,  it  is  provided 
that  "  any  instrument  to  which  the  person  making  the  same  shall 
affix  any  device,  by  way  of  seal,  shall  be  adjudged  and  held  to  be 
of  the  same  force  and  obligation  as  if  it  were  actually  sealed." 
In  an  action  in  the  Circuit  Court  of  the  United  States  for  the 
Southern  District  of  New  York,  upon  an  instrument  made  in 
Wisconsin,  with  a  view  to  performance  in  Wisconsin,  as,  for  in- 
stance, a  deed  of  warrantee  for  Wisconsin  lands,  suit  being  brought 
on  the  warranty,  the  action  was  brought  in  assumpsit,  according 
to  the  practice  on  simple  contracts  in  New  York,  and  it  was  held 
that  the  action  was  rightfully  brought,  as  to  the  form  thereof, 
and,  the  case  having  gone  to  the  Supreme  Court  of  the  United 
States,  that  court  affirmed  the  ruling  in  that  respect.*  The  Su- 
preme Court  of  the  United  States,  Woodbuky,  J.,  say  of  the  form 
of  action :  "  It  was  obliged  to  be  in  assum-psit  in  the  State  of 
New  York.  *  *  *  We  hold  this,  too,  without  impairing  at 
all  the  principle  that  in  deciding  on  the  obligation  of  the  instru- 
ment as  a  contract,  and  not  the  remedy  on  it  elsewhere,  the  law 
of  Wisconsin,  as  the  lex  loci  contractus,  must  govern."  ^ 

5.  Non-residents  Personally  Suable,  if  Found  and  Served. 
It  is  no  objection  to  the  jurisdiction  of  a  State  court  over  the 
person  of  a  defendant,  that  he  resides  in  a  different  State,  pro- 
vided personal  service  be  had  upon  such  defendant  in  the  State 
where  the  action  or  suit  is  brought,  and  provided  the  nature  of 
the  action  or  suit,  and  the  subject-matter  thereof,  be  such  as  is 
actionable  in  that  jurisdiction,  or  may  therein  be  enforced.^ 
Every  citizen  or  resident  of  a  State  or  territory  is  liable  to  suit, 
in  personam,  in  every  other  State  and  territory  wherein  he  may 

'  Robinson  v.  Campbell,  3  Wheat.  198 ;  Bank  of  Rochester  v.  Gray,  2 

213;  Le  Roy  v.  Beard,  8  How.  451;  Hill,  228. 

Meredith  u.  Hinsdale,  2  Caines,  362.  <  Lc  Roy  v.  Beard,  8  How.  451. 

*  Warren  "o.  Lynch,  5  John.  239.  *  Le  Roy  v.  Beard,  8  How.  464,  465 , 

*  Andrews  ■».  Herriott,  4  Cow.  508;  Robinson  ■».  Campbell,  3  Wlieat.  212. 
Van  Santwood  v.  Sandford,  12  John.  «  Swan  v.  Smith,  26  Iowa,  87 ;  Free- 
man on  Judgments,  §  566. 


26  INTER-STATE    RIGHTS    OP    SUIT. 

be  found  and  served  with  personal  notice,  on  causes  of  action 
arising  in  such  State,  as  also  in  actions  of  such  a  transitory  na- 
ture that  suits  may  be  maintained  thereon  in  the  courts  of  a 
different  State  than  that  wherein  the  right  of  action  accrued;  as, 
for  instance,  such  causes  of  action  as  follow  the  person  of  a 
debtor,  or  other  defendant,  as  contradistinguished  from  tliose  of 
a  local  cliaracter,  rendered  so  by  their  relation  to  local  things,  or 
by  growing  out  of  and  dependent  upon  local  statutes,  in  the 
State  where  the  CAUse  of  action  arises  other  than  that  wherein 
the  defendant  is  sued.^ 

§  6.  Jurisdiction  Obtained  by  Fraud.  But  jurisdiction  ob- 
tained by  fraud  is  invalid,  as  where,  if  by  false  or  fraudulent 
means,  a  party  is  induced  to  come  from  another  State  into  the 
jurisdiction  of  the  court,  in  order  to  procure  service  on  him  in 
a  judicial  proceeding,  the  court  will  set  the  service  aside  on  mo- 
tion and  proof  of  the  improper  means  thus  used.^ 

Service  on  a  Non-resident,  if  a  Witness.  And  so,  if  jurisdic- 
tion be  obtained  of  the  person  of  a  defendant  who  is  resident 
of  another  State,  by  personal  service  of  process  in  a  suit  against 
him,  made  upon  him  whilst  attending  within  the  State  where  thus 
sued  as  a  witness  in  a  cause  pending  in  the  courts  of  such  State, 
the  service  of  such  process  will  be  set  aside  npon  proper  applica- 
tion; for  it  is  the  policy  of  the  law  to  protect  suitors  and  wit- 
nesses from  service  of  process  in  civil  actions,  whether. the  process 
be  such  as  required  their  arrest,  or  be  merely  in  the  nature  of  a 
summons.  Service  in  such  cases  will  be  set  aside,  as  well  upon 
general  principles  as  upon  positive  law,  if  there  is  such.' 

7.  Foreign  Corporations,  Executors,  and  Administrators. 
It  is  not  definitely  settled  whether  a  corporation  may  be  sued  by 
service  on  its  officers  or  agents  doing  business  in  another  State* 
The  ruling  in  Missouri  is  that  a  private  corporation,  incorporated 
under  the  laws  of  another  State,  is  not  liable  to  be  sued  person- 
ally, within  the  State  of  Missouri,  by  ordinary  process  of  sum- 

'  Story's  Conf.  of  Laws,  §  538.  Pr.  331 ;   Halsey  v.  Stewart,  4  N.  J. 

■^Carpenter  v.  Spooner,   2    Sandf.  3G6;  Juneau   Bank  v.  McSpedan,   5 

717;  Wanzer  v.  Bright,  52  111.  35.  Biss.  64;  Parker  v.  Hotchkiss,  1  Wall. 

3  Person  v.  Grier,  66  N.Y.  124 ;  Nor-  jr.  269. 

ris  V.  Beach,  2  John.  294;  Sanford  v.  *  St  Louis  v.  Wiggins  Ferry,  40  Mo. 

Cha8e,3  Cow.  381;  Hopkins  c.Coburn,  580;   Angel  and  Ames  on  Coi:p.  §§ 

1  Wend.  192;  Seaver  v.  Robinson,  3  402-407. 
Duer,  622;  Merrill  v.  George,  23  How. 


SEEVICE    OlS"    A    MEMBER    OF    A    FIRM. 


27 


mons,  unless  such  foreign  corporation  has  its  chief  office  or  place 
of  business  in  said  State  of  Missouri ;  and  that,  if  such  chief 
office  and  place  of  business  be  not  therein,  then  proceedings 
against  such  foreign  corporation  can  only  be  had  in  rem,  as  by 
process  of  attachment. i  So  executors  and  administrators  are 
not  subject  to  an  action  or  suit  against  them  in  their  fiduciary 
capacity  in  the  courts  of  a  State  other  than  the  State  wherein 
their  authority  is  granted  to  tliem.^ 

8.  Service  on  a  Member  of  a  Firm  as  Against  a  Non-resident 
Member  Thereof.  Service  is  not  good  against  a  non-resident  de- 
fendant by  being  made  upon  a  member  of  a  firm,  of  which  firm 
defendant  is  also  a  member;  nor  is  it  good  against  the  firm,  so  as 
to  authorize  a  declaration  and  proceeding  against  the  firm,  where 
the  prmcipe  and  writ  show  the  origin  of  the  action  to  be  against 
a  natural  person  as  defendant.  By  such  a  proceeding  and  service 
no  jurisdiction  of  the  person  of  the  real  defendant  is  obtained, 
and  no  cause  is  legally  instituted,  or  brought  into  legal  existence, 
against  the  firm,  upon  which  to  sustain  an  action  or  judgment. ^ 


J  Middough  v.  St.  Jos.  &  Deu.  R  R. 
Co.,  51  Mo.  520 ;  Same  case,  3  Am.  Rw. 
Reps.  461 ;  Farnesworthi).Terre  Haute, 
etc.,  R.  R.  Co.,  29  Mo.  75 ;  St.  Louis  ®. 
Wiggins' Ferry  Co.,  40  Mo.  580;  Robb 
V.  Chicago  &  Alt.  R.  R.  Co.,  47  Mo. 
540.    This  subject  will  receive  fur. 


ther  treatment.    See  post.  Chap.  25,  §  3. 

'■'Vaughan  v.  Northup,  15  Pet.  1^ 
Fenwick  v.  Sears,  1  Cr.  259 ;  Dixon's 
Execrs.  v.  Ramsay's  Execrs.,  3  Cr.  319 ; 
Kerr  v.  Moon,  9  Wheat,  565.  See  post^ 
Chap.  24. 

8Frinkc.Sly,4Wis.310. 


28  OONOUERENT   JUEISDIOTION. 


CHAPTER   y. 

OONCUERENT  CIVIL  JUEISDIOTION,  STATE  AND   NATIONAL. 

I.    Extent  Thereof. 
II.    Suit  in  Name  of  Legal  Owner  in  United  States  Circuit  Court. 

III.  Citizenship  and  Proof  of  Value  in  Controversy  in  United  States 

Courts. 

IV.  Decisions  of  National  Courts  in  Cases  of  Concurrent  Jurisdic- 

tion. 
V.    Jurisdiction  of  Two  or  More  Districts  in  one  Statb. 
VI.    Jurisdiction  in  Naturalization  Proceedings. 

I.    Extent  Theeeop. 

Under  the  national  Constitution  and  laws,  the  circuit  courts 
of  the  United  States  have  original  cognizance  concurrent  with 
the  courts  of  the  several  States,  of  all  suits  of  a  civil  nature  at 
common  law,  or  in  equity,  where  the  matter  in  dispute  exceeds, 
exclusive  of  costs,  the  sum  of  five  hundred  dollars,  in  the  following 
enumerated  cases,  viz.: 

1.  Suits  arising  under  the  Constitution,  laws,  or  treaties  of 
the  United  States; 

2.  Suits  in  which  the  United  States  are  plaintifis  or  peti- 
tioners; 

3.  Suits  in  which  there  is  a  controversy  between  citizens  of 
different  States; 

4.  Suits  between  citizens  of  the  same  State  claiming  lands 
under  grants  of  different  States; 

5.  Suits  in  a  controversey  between  citizens  of  a  State  and  for- 
eign states,  citizens,  or  subjects. ^  And  in  naturalization  pro- 
ceedings. 

But  no  one  can  be  arrested,  in  any  such  suit,  in  one  district  for 
trial  in  another.' 

'  Act  of  Cong.  March  3,  1875 ;  Judi-  ciary  Act,  1  Stat,  at  Large,  78,  §  11. 

ciary  Act,  1  Stat,  at  Large,  78,  §  11 ;  See,  also,  ex  parte  Graham,  3  Wash. 

Desty's  Federal  Procedure,  71,  §  1,  C.  C.  456. 

« Act  of  Cong.  March  3, 1875 ;  Judi- 


% 


COMMON    LAW    CIVIL    JUEISDICTION.  29 

Common  Law  Civil  Jurisdiction.  The  term  common  law  civil 
jurisdiction,  as  here  used,  is  intended,  in  the  language  of  the 
United  States  Supreme  Court,  to  "  embrace  all  suits  which  are 
not  of  equity  and  admiralty  jurisdiction,  whatever  may  be  the 
peculiar  form  which  they  may  assume,  to  settle  legal  rights;" 
and  not  such  proceedings  only  "  as  in  forms  and  practice  con- 
form strictly  to  those  of  the  old  common  law."i  For  there  is 
no  common  law  of  the  United  States,  as  a  nation;  but  the  na- 
tional courts  (except  in  criminal  cases)  administer  the  laws  of  the 
respective  States  wherein  they  are  held.^ 

Common  and  Civil  Law  as  the  Basis  of  State  Jurisprudence. 
And  although  the  common  law  prevails  in  most  of  the  States  to 
a  certain  extent,  in  their  local  jurisprudence,  and  forms  the  basis 
of  their  judicial  system,  yet  its  continued  existence  in  their  more 
modern  codes  and  revisions  is  of  so  modified  a  character  as  to 
retain  merely  its  leading  principles  and  outlines,  while  again,  in 
some  of  them,  the  civil  law  is  to  be  regarded  as  the  origin  of 
their  system.  ^  For  the  purpose,  however,  of  discussing  the  sub- 
ject matter  of  this  section,  it  is  intended,  as  above  stated,  to  em- 
brace all  civil  proceedings  which  do  not  belong  to  equity  and 
maritime  jurisdiction. 

II.     Suit  in  Name  of  Legal  Owner,  in  United  States  Cikcuit 

Court. 

A  person  having  the  requisite  qualification  as  to  citizenship, 
and  the  legal  right  of  the  subject  matter  of  the  suit,  may 
sue  in  the  United  States  Circuit  Court  without  regard  to  the  cit- 
izenship of  others  who  may  be  interested  in  the  proceeds  of  the 
suits.  Hence  a  note  to  bearer,  for  use  of  others  named,  as  for 
instance,  an  unincorporated  company,  may  be  sued  in  such  court 
by  the  bearer  thereof,  as  the  law  places  the  legal  interest  in  him. 
The  courts  have  nothing  to  do  with  the  trust,  nor  with  the  citi- 

1  Parsons  v.  Bedford,  3  Pet.  433, 446,  court,  yet  it  may  be  resorted  to,  to  as- 

447.  sist  in  deciding  certain  questions  af- 

*  Wheaton  v.  Peters,  8  Pet.  591 ;  Lor-  ter  tlie  jurisdiction  has  attached.    U. 

man  v.  Clarke,  2  McLean,  568;  Van  S.  v.  New  Bedford  Bridge,  1  Woodb. 

Ness  V.  Packard,  3  Pet.  137 ;  People  v.  &  M.  401 ;  Gardner's  Institutes,  301, 

Folsom,  5  Cal.  373.    Though  the  com-  303. 

mon  law  cannot  be  resorted  to  as  giv-         ^  See  post,  %  1,  Chap.  6;  Cooley  on 

ing  jurisdiction  to  the  United  States  Const.  Lim.  *31-35. 


30  CONCURRENT    JURISDICTION. 

zenship,  of  those  to  whom  the  equitable  interest  in  the  proceeds 
may  be  going.  ^ 

III.    Citizenship  and  Pjroof  of  Value  in  Controversy. 

In  an  action  or  suit,  in  a  circuit  court  of  the  United  States,  by 
&  citizen  of  one  State  against  a  citizen  of  another,  it  is  not  neces- 
sary that  the  plaintiff's  petition,  bill,  or  declaration  should  allege 
or  state  that  the  State  of  which  either  party  is  a  citizen  is  one  of 
the  United  States.  It  is  sufficient  if  the  State  itself  be  named, 
and  the  court  will  necessarily  take  notice  of  the  fact,  if  such  it 
be,  that  such  State  is  one  of  the  United  States,  composing  the 
Union,  or  national  government.  ^ 

So,  when  citizenship  of  a  litigant  party,  of  a  State,  is  neces- 
sary to  be  averred  or  stated  in  pleading,  an  allegation  that  the 
party  is  a  citizen  of  the  United  States,  naturalized  in  a  certain 
State,  and  residing  therein,  is  held  to  be  equivalent  to  an  aver- 
ment that  the  party  is  a  citizen  of  that  State. ^  To  confer  juris- 
diction, the  citizenship  must  be  shown  or  alleged  in  the  body  of 
the  bill  or  declaration,  in  such  manner  and  place  as  to  be  trav- 
ersable, and  not  merely  in  the  cajDtion.* 

Proof  made  of  Value,  to  confer  Jurisdiction.  And  when  the 
nature  of  the  action  or  suit  is  such  that  the  demand  is  not  for 
money,  as  for  instance  in  an  ejectment  or  other  suit  for  land,  and 
the  law  does  not  require  the  value  thereof  to  be  stated  in  the 
•declaration  or  petition,  then  the  practice  in  the  United  States 
courts  is  to  allow  the  value  to  be  proven  in  evidence.  ■* 

Bules  of  Evidence.  The  rules  of  evidence  in  a  State  are  also 
rules  of  evidence  in  the  courts  of  the  United  States,  under 
the  34tli  section  of  the  judiciary  act,  while  sitting  within 
the  limits  of  such  State ;  and  such  State  rules  of  evidence  are 
always  followed  by  the  Federal  courts  sitting  in  a  State,  as  well 
in  commercial  cases  as  in  others.^     The  construction  given  to 

'Bonnafeet).  Williams,  3  How.  574.  ^  Ex  parte   Bradstreet,  7  Pet.  634. 

'  Wright  B.Hollingsworth,  1  Pet.  165.  647 ;  Crawford  v.  Burnham,  4  Am.  Law 

» Gassies  v.  Ballou,  6  Pet.  761.  Times,  (o.  s.)  228. 

*  Jackson  v.  Ashton,  8    Pet.    148;  «Ryan  v.  Bindley,  1  Wall.  66,  68; 

Findlayp.  Bank  of  U.  S.,  2McL.  44;  Vance  r.  Campbell.    1    Black,   427; 

Bayerque    v.  Haley,    1    McAll.  97 ;  Wright  v.  Bales,  2  Black,  535 ;  Sims  v. 

Dodge  V.  Perkins,  4  Mass.  435 ;  Vose  Hundley,  6  How.  1 ;  Brandon  v.  Loft- 

o.Philbrook,  3  Story,  336;  Course  v.  us,  4  How.  127;  McNiel  b.  Holbrook, 

fitead,  4  Dal.  22.  12  Pet.  48;  Wilcox  v.  Hunt,  13  Pet. 


I 


DECISIONS    OF    NATION"AL    COURTS.  31 

State  laws  by  State  courts  govern  the  United  States  court,  ^  unless 
the  law  should  be  of  a  general  nature,  not  confined  to  the  locality 
or  State. 

TV.    Decisions  of  !N^ational  Courts. 

Whether  decisions  of  the  national  courts  are  to  be  regarded  as 
paramount  rules  of  law  or  not,  depends  in  some  respects  upon 
the  character  of  the  subject  matter  of  the  cause  in  which  they 
are  rendered,  and  the  manner  of  obtaining  jurisdiction  of  the 
action.  In  cases  of  concurrent  jurisdiction  with  the  State  courts, 
as  where  the  jurisdiction  of  the  Federal  courts  rests  upon  the 
citizenship  of  the  parties,  and  in  which  the  State  laws  are  ad- 
ministered, then  if  the  questions  involved  are  such  as  in  regard 
to  whicli  the  State  decisions  are  deferred  to  by  the  Federal  court, 
it  results  therefrom  that  the  dignity  and  force  of  the  judgment 
as  a  rule  of  law,  as  also  the  validity  and  eft'ect  thereof,  is  only 
such  as  is  accorded  to  judgments  of  State  courts,  under  similar 
circumstances.  2 

Y.    Jurisdiction,  Two  or  More  Districts  in  One  State. 

When  a  State  is  divided  into  two  districts,  and  a  United  States 
Circuit  Court  is  held  in  each  district,  a  defendant  who  is  a  citizen 
of  such  State  may  be  sued  in  either  district,  if  found  and  served 
therein,  by  a  citizen  of  a  different  State.  It  is  no  defense  as  against 
the  jurisdiction  of  the  court  that  the  defendant  resides  in  the 
other  district  than  the  one  in  which  he  is  sued.  The  fact  of  beinor 
found  and  served  within  the  district  in  whicli  he  is  sued  brines 
the  case  within  the  very  language  of  the  act  of  the  law.  It 
takes  it  out  of  the  prohibition  of  the  judiciary  act,  that  "  no 
civil  suit  shall  be  brought  in  the  courts  of  the  United  States, 
against  an  inhabitant  of  the  United  States,  by  any  orio-- 
inal  process,   in  any   other    district  than  that   whereof  he    is 

378;    Haussknecht    v.    Claypool,     1  Bank  of  U.  S.  ■».  Daniel,  12  Pet.  33; 

Black,    431 ;    U.    S.  v.   Dunham,   21  Green  v.  Neal,  6  Pet.  291 ;  Suydam  v. 

Monthly  Law  Rep.  591;   Fowler  v.  Williamson,  24  How.  427;  Randall  ■». 

Hecker,  4  Blatchf.  425.  Brigham,    7    Wall.  523;    Loring   v. 

1  Gut  V.  Minnesota,  9  Wall.  35 ;  King  Marsh,  2  Cliff.  311, 469. 

V.  Wilson,  1  Dill.  555 ;  Polk  v.  Wendal,  *  Dupasseur  v.  Rochereau,  21  Wall. 

9  Cr.  87 ;  Thatcher  v.  Powell,  6  Wheat.  130. 
119;  Shelby  v.  Guy,  11  Wheat.  367; 


32  CONCURRENT   JURISDICTION. 

an  ialiabitant,  or  in  which  he  shall  be  found  at  the  time  of 
serving  thewrit."^  In  all  cases  on  contract  the  suit  may  bo 
brought  in  the  circuit  court  of  the  district  wherein  the  defendant 
is  found.  If  sued  out  of  the  district  in  which  he  lives,  he  may 
object,  but  this  is  a  privilege  which  he  may  waive.*  When  the 
jurisdiction  of  the  person  will  enable  the  court  to  give  eflfect  to 
its  judgment  or  decree,  it  may  be  exercised;  but  if  the  subject 
matter  is  local,  and  is  situated  beyond  the  limits  of  the  district, 
the  circuit  court  sitting  in  such  district  has  tio  jurisdiction 
thereof  Actions  for  real  property,  or  ejectment  for  possession 
thereof,  or  trespass  quare  clausum  fregit^  or  trespass  upon  real 
property,  in  any  manner,  will  not  lie  in  any  other  jurisdiction 
than  where  the  real  property,  sued  for  or  injured,  is  situated. ^ 

VI.    JuRiSDicnoN  IN  Naturalization  Peoceedings. 

Tlie  jurisdiction  of  national  and  State  courts  in  cases  of  nat- 
uralization is  concurrent,  although  the  proceedings  are  under 
the  laws  of  the  former. 

The  jurisdiction  was  originally  conferred  upon  the  supreme, 
superior,  district  or  circuit  courts  of  the  several  States, 
and  of  territorial  districts  of  the  United  States,  and  upon 
the  circuit  and  district  courts  of  the  United  States,  concur- 
rently.* But  doubts  having  arisen  as  to  the  meaning  of  the  term 
district  courts  of  the  States,  it  was  subsequently  enacted  that 
every  court  of  record  in  any  individual  State,  having  common 
law  jurisdiction  and  a  seal  and  clerk  or  prothonotary,  shall  be 
considered  as  a  district  court  within  the  meaning  of  said  original 
enactment.'*  Thus  it  is  that  all  State  courts  of  record,  having  a 
seal  and  clerk  or  prothonotary,  have,  with  the  United  States  ter- 
ritorial courts,  and  United  States  district  and  circuit  courts,  jur- 
isdiction, under  the  acts  of  Congress,  of  naturalization  cases. 

The  authority  to  provide  by  law  for  naturalization  of  foreign- 
ers, or  others,  is  exclusive  in  the  Congress  of  the  United  States.^ 
By  adoption  of  the  United  States  Constitution,  the  naturalization 
laws  of  the  several  States  ceased  to  exist.' 

'  McMicken  v.  Webb,  11  Pet.  25.  •*  2  U.  S.  Stat  at  Large,  153,  §  1. 

« North.  Ind.  R.  R.  Co  v.  Michigan  »  2  U.  S.  Stat,  at  Large,  153,  §  3. 

Cent  R.  R  Co.,  15  How.  238.  •  Chirac  v.  Chirac,  2  Wheat  260. 

»  Ibid.  '•  U.  S.  V.  Villato,  2  Dall.  370. 


COMMON   AND    CIVIL    LAW   AS    STATE   LAWS. 


CHAPTEE   YI. 

COMMON  LAW,  CIVIL  LAW,  AND   LAW  OF  STATE  AND  NATIONAL  COUETS. 

I,  The  Common  Law  and  Civil  Law  as  State  Laws. 

11.  United  States  Courts  Administer  State  Laws. 

III.  But  not  as  to  Forms  op  Process,  unless  Adopted. 

IV.  Processes  of  State  Courts  may  be  Adopted. 
V.  Rulings  op  the  Courts.    When  Followed. 

VI.    National  Powers  and  Courts  not  Affected  by  State  Laws. 

I.     The  Common  Law  and  Civil  Law  as  State  Laws. 

Thoiigh  the  common  law  is  presumed  to  exist  in  most  of  the 
States,  as  to  general  principles,  if  nothing  be  shown  to  the 
contrary ;i  yet  it  is  not  presumed  to  exist  without  statutory 
changes  and  modifications. ^ 

The  extent  to  which  the  common  law  prevails,  and  the  modifi- 
cations thereof  in  each  particular  State,  depend  upon  the  local 
constitution  and  laws  thereof.-' 

But  as  to  those  States  now  existing  where  their  were  estab- 
lished civil  governments  and  codes,  or  systems  of  domestic  law, 
in  which  the  civil  law  prevailed,  as  for  instance,  Louisiana,  Texas 
and  Florida,  prior  to  their  becoming  Territories  or  States  of  the 
Union,  the  common  law  is  not  presumed  to  prevail  therein.'* 

If,  on  the  trial  of  a  cause  elsewhere,  the  question  arises  as  to 
the  law  of  one  of  these  States  in  which  the  common  law  is  not 
presumed  to  prevail,  the  presumption  in  such  case  is,  if  nothing 

>  Crouch  V.  Hall,  15  111.  263 ;  Ellis  v.  111.  669 ;  Sedgwick  on  Construction 

White,  35  Ala.  540;  Norris  v.  Harris,  of  Statutes,  13  and  note. 

15  Cal.  326;    Coburn  «.  Harvey,  18  » Blystone  «.  Burgett,  10  Ind.  28 ;  Cc 

Wis.  147 ;   Hamilton  v.   Kneeland,  1  burn  v.  Harvey,  18  Wis.  147. 

Nev.  40;  State  t).  Cummings,  33  Conn.  ^Lorman  e.  Benson,   8  Mich.  18; 

260 ;  White  v.  Knapp,  47  Barb.  549 ;  Morgan  v.  King,  30  Barb.  9 ;  Wagner 

McDougald  v.  Carey,    38  Ala.  330;  «.  Bissell,3  Iowa,  396. 

Miles  V.  Collins,  1   Met.  (Ky.)  308;  <  Norris t).  Harris,  15  Cal.  326;  Sedg- 

Reese  v.  Mutual  Benefit  Ins.  Co.,  33  wick  on  Construction  of  Statutes,  13 

N.  Y.  516, 522 ;  Plumleigh  v.  Cook,  13  and  note. 
3 


34    COMMON    AND    CIVIL    LAW,    STATE    AND    NATIONAL. 


to  the  contrary  is  shown,  that  the  law  is  the  same  as  in  the  State 
where  the  trial  is  proceeding.^ 

If  the  contrary  is  insisted  upon  by  either  party,  those  who  as- 
sert the  existence  of  the  law  must  plead  and  prove  it.* 

II.    United  States  Circuit  Courts  Administer  the  State  Laws. 

We  have  no  national  common  law,  or  common  law  of  the  United 
States  in  their  united  capacity  as  a  nation. ^  The  Federal  courts 
administer  the  laws  of  the  several  States,  and  of  the  national 
Congress;  the  common  law,  therefore,  when  administered  in  the 
national  courts,  is  administered  as  it  exists  in  a  more  or  less 
modilied  form  in  the  State,  when  pertinent  to  the  controversy.* 

The  circuit  courts  of  the  United  States  are  bound  to  take  no- 
tice of  the  general  laws  of  the  several  States.  They  are  created 
by  Congress  to  administer  the  laws  of  all  the  States  of  the  Union 
in  cases  to  which  these  laws  respectively  a])ply.  Their  jurisdic- 
tion extends  to  many  cases  arising  under  State  laws.  This  State 
jurisprudence  is  not  a  foreign  one,  to  be  proven  in  court  in  the 
ordinary  manner  of  proving  the  laws  of  foreign  countries  in 
courts  of  justice,  but  is  to  be  judicially  taken  notice  of  in  the 
same  manner  by  the  United  States  courts  as  the  laws  of  the 
United  States  are  by  them  taken  notice  of.^  But  this  rule  of  law 
applies  only  in  law  cases,  and  not  to  proceedings  in  chancery.'' 


'  Norris  v.  Harris,  15  Cal.  226 ;  Mon- 
roe X.  Douglass,  5  N.  Y.  447.  But  no 
such- presumption  arises  in  regard  to 
the  statute  laws  of  anotlier  State.  Mc- 
Culloch  V.  Norwood,  58  N.Y.  5C2, 567. 

'  Monroe  «.  Douglass,  5  N.  Y.  447; 
Story's  Conf.  of  Laws,  §  638;  Green- 
leaf  on  Evidence,  §  486,  et  aeq.  It 
■would  seem  that  the  same  rule  which 
governs  the  proof  of  laws  of  foreign 
countries  in  our  State  courts  would 
also  govern  the  proof  of  laws  of  sis- 
ter States.  As  to  how  foreign  laws 
are  proved  see  Hall  v.  Costello,  48  N. 
II.  176 ;  Barrows  v.  Downs,  9  R.  I.  446 ; 
Greenleaf  on  Evidence,  §  488 ;  Sedg- 
wick on  Construct,  of  Statutes,  93  et 
seq.;  Wharton's  Conf.  of  Laws,  g  771  et 
seq. ;  Smith's  Statutory  Law,  Chap.  21. 

3  Wheaton  v.  Peters,  8  Pet.  591 :  Lor- 


mano.  Clarke,  2  McLean,  568;  Van 
Ness  V.  Pacard,  2  Pet.  137;  People  v. 
Folsom,  5  Cal.  374;  see  ante,  Chap.  5, 
§  I.  p  29. 

*  Wheaton  v.  Peters,  8  Pet.  591 ;  Lor- 
man  v.  Clarke,  2  McLean,  568 ;  Peo- 
ple V.  Folsom,  5  Cal.  874 ;  Van  Ness  t. 
Pacard,  2  Pet  137 ;  see  ante,  Chap.  5, 
§  I.  p.  29. 

»Owings  V.  Hull,  9  Pet.  607;  Car- 
penter r.  Dexter,  8  Wall.  513,  518; 
Cheever  v.  Wilson,  9  Wall.  108;  Pen- 
nington V.  Gibson,  16  How.  65,  80; 
Clark  V.  Smith,  13  Pet.  195,  203,  205 ; 
Piqua  Branch  Bank  v.  Knoop,  16 
How.  369;  Beauregard  v.  New  Or- 
leans. 18  How.  497. 

« Neves  v.  Scott,  13  How.  268 ;  U.  S. 
V.  Howland,  4  Wheat.  108,  115 ;  Boyle 
e.Zacharie,  6  Pet.  648,  658;  Robinson 


FORMS    AND    PROCEEDINGS.  35 

And  where  the  statute  law  of  a  State  renders  an  unsworn  plea  of 
non  est  factum  inadmissible  in  a  State  court,  the  courts  of  the 
United  States,  sitting  in  such  State,  will  follow  the  State  statute 
upon  that  subject.  ^ 

But  in  cases  involving  general  commercial  law,  the  Federal 
courts  construe  the  law  for  themselves,  and  do  not  defer  to  the 
State  court  decisions.^ 

III.     But  not  as  to  Fokms  and  Pleadings,  unless  Adopted 

BY  Them. 

Statutes  of  the  States  in  proprio  vigore  are  of  no  force 
so  far  as  regards  the  forms  of  suits,  modes  of  proceedings,  or 
pleadings,  in  courts  of  the  United  States.  Congress  has  exclu- 
sive authority  over  these  subjects.  So  far  as  by  act  of  Congress 
State  laws  have  been  adopted,  or  under  authority  of  acts  of  Con- 
gress have  been  adopted  by  these  courts,  they  are  obligatory,  and 
no  further.  No  court,  however,  of  the  United  States  may  adopt 
such  as  are  in  conflict  with  the  acts  of  Congress  upon  the  subject 
of  jurisdiction,  forms,  practice  or  proceedings  in  the  courts  of  the 
United  States. ^  A  broad  distinction  exists  in  this  respect  as  re- 
spects statutes  which  are  rules  of  right  and  property,  and  such 
as  go  to  the  remedial  forms,  proceedings  and  practices  of  the 
courts.  The  former  are  the  law  of  the  forum  of  the  United 
States  court,  in  any  State,  when  not  in  conflict  with  the  national 
laws  or  Constitution,  and  will  not  only  be  administered,  but  will 
be  taken  notice  of  by  the  courts.*  Thus,  State  statutes  which 
require  suits  on  bills  or  notes,  in  the  county  where  the  drawers 
live,  or  where  the  first  endorser  lives,  and  similar  requirements 
will  be  disregarded  as  utterly  incompatible  and  repugnant  to  the 
organization  and  jurisdiction  of  the  United  States  courts;  and  so 
of  State  laws  requiring  the  joinder  of  both  drawers  and  endorsers 
of  bills  of  exchange  in  one  and  the  same  action,  for  the  law  of 

V.  Campbell,  3  Wheat.  212,  222;  Liv-  Browning  v.  Andrews,  3  McLean,  576. 

ingstou  u.  Story,  9  Pet.  654;  Russell®.  ^  jj^ary  i;.  Farmers  &  Merchants' 

Southard,  12  How.  139.  Bank  of  Memphis,  16  Pet.  89. 

'  Bell  v.  Mayor,  etc.,  of  Vickshurg,  *  Brine  v.  Insurance  Co.,  6  Otto,  627, 

23  How.  443.  and  approved  in  Oi-vis  «.  Powell  (Oct. 

2  Williams  ».  Suffolk  Ins.  Co.,  3  Sum.  Term  Sup.  Ct.  of  U.  S.,1878);  3'Chicago 

270 ;  S.  C,  13  Pet.  415 ;  Austen  v.  Mill-  Law  Journal,  190. 
er,  5  McLean,  135 ;  8.  C,  13  How.  218; 


36    COMMON    AND    CIVIL    LAW,    STATE    AND    NATIONAL. 

jurisdiction  as  to  citizens  of  diflferent  States  excepts  suits  for  the 
contents  of  promissory  notes  or  other  chosea  in  action  in  favor 
of  an  assignee,  unless  the  suit  might  have  been  brought  in  such 
court  if  no  assignment  or  endorsement  had  been  made  —  except 
as  to  foreign  bills  of  exchange.  For  in  such  cases  it  may  often 
occur  that  the  residence  and  citizenship  of  these  parties  are  not 
such  as  to  render  suit  against  them  all,  in  the  same  action,  prac- 
ticable in  the  United  States  court. ^ 

lY.     PKOChSSES  OF  State  Courts  mat  be  Adopted. 

The  processes  and  practice  of  the  highest  State  courts  of  orig- 
inal jurisdiction  in  proceedings  at  law  are  likewise  conformed 
to  by  the  United  States  circuit  courts  sitting  in  the  several  States, 
so  far  as  the  same  are  or  shall  be  adopted  by  the  said  circuit 
courts.2  But  the  power  to  adoi)t  the  same  is  not  vested  in  a  dis- 
trict judge  sitting  alone,  as  judge  of  a  circuit  court,  except  in 
those  States  where  there  may  be  no  full  circuit  court,  wherein  the 
district  judge  and  court  exercises  the  functions  and  jurisdiction 
as  well  of  the  circuit  court  as  of  the  district  court.* 

V.    Rulings  of  the  Couet.    When  Followed. 

The  construction  put  upon  the  constitutions  and  State  laws  of 
the  several  States,  by  their  own  courts,  will  be  mutually  respected 
and  followed  in  the  courts  of  each  other,  whenever  those  con- 
structions and  laws  come  under  their  judicial  consideration  in 
matters  involving  the  same  points  thus  adjudicated.'* 

So,  too,  as  between  the  national  courts  and  State  courts.  The 
former,  as  a  general  rule,  follow  the  local  decisions  of  the  high- 
est State  courts  of  the  State  wherein  they  are  sitting,  when  such 
decisions  are  settled  and  uniform  and  have  become  a  rule  of 
property,  especially  so,  as  to  lands,  in  regard  to  the  constructions 
of  State  constitutions,  statutes,  and  unwritten  laws,  if  the  same 
do  not  conflict  with  the  Constitution,  treaties  or  laws  of  the 

^  Brine  v.  Insurance  Co.,  6  Otto,  627,  *  Brown  v.  Phillipps,  16  Iowa,  210 

and  approved  in  Orvis  v.  Powell  (Oct.  Franklin  v.  Twogood,  25  Iowa,  520 

Term  Sup.  Ct.  of  U.S.,  1878);  2  Chic.  Thompson   v.  Alger,   12    Met.    428 

Law  Journal,  190.  Sedgwick  on  Const,  of  Statutes,  362, 

« Amis  V.  Smith,  16  Pet.  803.  868. 

•Ibid. 


NATIOI^'AL    POWERS    AND    JURISDICTION.  37 

United  States.'  But  the  national  courts  will  not  change,  as  a 
general  principle,  with  local  changes. ^  On  the  contrary,  will,  in 
questions  affecting  constitutional  rights,  or  remedies  of  creditors, 
although  involving  State  constitutions  or  statutes,  judge  for 
themselves,  regardless  of  all  such  State  court  constructions  as 
may  amount  to  a  denial  of  remedy;  and  so,  too  in  matters  of 
contract  involving  such  statutory  or  constitutional  construction. ^ 
So,  also.  State  court  decisions  and  constructions  of  instruments 
on  common  law  principles,  are  not  binding  on  the  Federal  courts 
as  rules  of  decision.'*  JSTor  when  made  in  reference  to  the  gen- 
eral commercial  law,  if  in  contravention  thereof.  ^ 

VI.    National   Powers  and  Jukisdiction   not  Affected   by 

State  Laws. 

The  jurisdiction  of  the  Federal  courts  cannot  be  restricted  or 
enlarged  by  State  legislation. ^ 

This  is  the  case,  too,  whether  viewed  in  relation  to  actions  and 
suits  originally  brought  therein  or  in  reference  to  such  as  are 
first  brought  in  a  State  court,  and  are  removed  to  the  United 
States  Circuit  Court  under  some  of  the  acts  of  Congress  allow- 
ing such  removal.'' 

H'ational  Powers  not  Affected  by  State  Laws.  State  laws  can- 
not control  the  rightful  powers  of  the  national  government,  or 

» Thatcher  v.  Powell,  6  Wheat.  119,         2  pjqua  Branch  Bank  v.  Knoop,  16 

127  ;  Green  v.  Neal,  6  Pet.  391,  298  ;  How.  369. 

Shelly  V.  Guy,  11  Wheat.  361,  367;  ^  gut^  ^_  city  of  Muscatine,  8  Wall. 

Taylor  v.  Brown,  5  Cr.  234,  255  ;  Mc-  575,  584  Changes  will  be  made,  how- 

Keen  v.  Delancy,  5  Cr.  23  ;  Massie  v.  ever,  if  the  local  decisions  have  been 

Watts,  6  Cr.  148,  167;  Elmendorf  v.  misconceived.    Green  i;.  Neal,  6  Pet. 

Taylor,  10  Wheat.  153;  McCutchen  v.  291. 

Marshall,  8  Pet.  220 ;  Nesmith  v.  Shel-         *  Foxcroft  v.  Mallett,  4  How.  353. 
dou.  7  How.  812;  Piqua  Branch  Bank         ^  g^ift  ^  Tyson,  16  Pet.  1 ;  Polk  v. 

■p.   Knoop,   16  How.  369 ;   Parker  v.  Wendal,  9  Cr.  87. 
Kane,  23  How.  1 ;  Middleton  v.  Mc-         « Phelps  «.  O'Brien  Co.,  3  Dill.  518, 

Grew,  23  How.  45 ;  Bank  of  Hamilton  and  cases  in  note  following. 
V.  Dudley,  2  Pet.  492;  U.  S.  v.  Morri-  ^  Phelps  v.  O'Brien  Co.,  3  Dill.  512; 

son,  4  Pet.  124;  Henderson  v.  Griffin,  Insurance  Co.  v.  Morse,  20  Wall.  445; 

5  Pet.   151 ;    Thompson  v.  Phillips,  Hobbs  v.  Manhattan  Ins.  Co.,  56  Me. 

Baldwin,  246 ;    Brine  v.   Ins.  Co.,  6  417 ;  Hatch  v.  Chi.  R.  I.  &  P.  R.  R. 

Otto,  627 ;  Orvis  v.  Powell  (Sup.  Ct.  Co.,  6  Blatch.  105. 
of  U.  S.,  Oct.  Term,  1878);  2  Chicago 
Law  Journal,  190. 


38    COMMON    AND    CIVIL    LAW,    STATE    AND    NATIONAL. 

the  proper  discharge  of  the  official  functions  of  Federal  officers 
or  courts;  they  have  no  operation  of  their  own  mere  force  upon 
the  process  or  proceedings  of  the  courts  of  the  United  States,  as 
to  remedies  or  practice,  and  are  only  obligatory  so  far  as  adopted 
by  Congress,  or,  under  the  process  acts  of  1792  and  subsequent 
acts  upon  the  same  subjects,  by  these  courts  themselves;  and 
these  same  courts  have  power  to  alter  and  amend  the  rules  of 
process,  as  well  as  the  manner  of  proceedings  in  court.*  So, 
also,  as  to  jurisdiction  between  citizens  of  different  States,  it  is 
a  well  settled  principle  that  the  jurisdiction  of  the  United  States 
courts  over  controversies  between  citizens  of  different  States  can- 
not be  impaired  by  the  laws  of  the  States  prescribing  the  modes 
of  redress  in  their  courts,  or  regulating  the  distribution  of  State 
judicial  powers. ^ 

'Beers  v.  Haughton,  9  Pet.  329;  Bankr.  Jolly,  18  How.  503;  Suydam 

"VVayman  v.  Southard,  10  Wheat.  1;  v.  Broadnax,  14  Pet.  67;    Payne  v. 

Bank  of  U.  S.  t).  Halstead,  10  Wheat  Hook,  7  Wall.  425,    430;    Beers    v. 

51;    Clark   V.  Smith,   13    Pet.    195;  Haughton,   9   Pet.    329;    Watson  o. 

Brewster  v.  Wakefield,  22  How.  118.  Tarpley,  18  How.  617. 

« Hyde  v.  Stone,  20  How.  170;  Union 


INTER-STATE   EQUITY   JURISDICTION.  39 


CHAPTEE    yil. 

INTER- STATE   EQUITY   JURISDICTON   AND    PRACTICE. 

T.    Concurrent  State  and  Nationai.  Equity  Jurisdiction. 
II.    Equity  Practice  and  Rules  in  United  States  Courts. 

III.  Jurisdiction  in  United  States  Courts  of  Executors  and  Adminis- 

trators. 

IV.  Enjoining  of  Judgment  of  United  States  Court  in  Same  Court. 
V.    State  Court  may  Act  by  Instruction  upon  the  Person  of  Defend- 
ant, to  Prevent  Suit  in  Another  State. 

I.     Concurrent  State  and  National  Equity  Jurisdiction. 

The  circuit  courts  of  the  United  States  have  a  general  equity 
jurisdiction  within  the  rightful  sphere  of  their  authority  as 
Federal  courts  in  all  cases  where  a  plain,  adequate  and  complete 
remedy  cannot  be  had  at  law;^  and  this  jurisdiction  is  concurrent 
with  that  of  the  State  courts  in  all  suits  in  equity  between  citizens 
of  diiferent  States,  where  the  sum  or  value  in  controversy  is  over 
five  hundred  dollars,  exclusive  of  costs.  ^ 

Election  of  Forums.  Thus,  in  equity  suits,  by  citizens  of  one 
State  against  citizens  of  another  State,  the  complainants  have 
their  election  to  proceed  in  the  State  court  of  the  State  wherein 
the  defendants  reside,  or  in  the  United  States  Circuit  Court,  when 
the  sum  or  value  of  the  matter  in  controversy  amounts  to  over 
five  hundred  dollars,  exclusive  of  costs.  ^ 

When  Subject  to  Removal.  And  when  such  a  suit  is  brought 
in  a  State  court,  by  a  citizen  of  the  State  where  it  is  brought, 
against  a  citizen  of  another  State,  the  defendant  may  remove  the 
same,  for  trial  into  the  United  States  Circuit  Court  of  the  district.* 


'  Story's  Eq.  Jurisprudence,  §  57 
Story  on  the  Const.,  §§  1645,  1646 
Robinson  v.  Campbell,  3  Wheat.  212 
U.  S.  «.  Howland,  4  Wheat.  108,  115 
Parsons  «.  Bedford,  3  Pet.  433 
Boyce's  Exrs.  ■».  Grundy,  3  Pet.  110 
Bean  ©.  Smith.  2  Mas.  252. 


« 1  Stat,  at  Large,  78,  §  11. 

3  Robinson  v.  Campbell,  3  Wheat. 
221;  Parsons  v.  Bedford,  3  Pet.  433; 
U.  S.  V.  Howland,  4  Wheat.  115. 

n  Stat,  at  Large,  79,  §12. 


40  INTER-STATE    EQUITY    JUKISDICTION. 

II.     Equity  Practice  and  Rules  in  United  States  Courts. 

The  proceedings,  forms  and  practice  in  equity  in  the  United 
States  Circuit  Court  conform  to  those  of  the  English  chancery,  and 
not  to  the  practice  of  the  State  courts  wherein  the  circuit  court  sits, 
as  in  suits  at  law.*  This,  too,  irrespective  of  whether  such  State 
has  a  system  of  equity  jurisprudence  of  its  own,  or  not.  In 
other  words,  the  system  of  equity  practice  of  the  United  States 
courts  does  not  vary  in  the  diiferent  districts  with  that  of  the  re- 
spective States,  but  is  uniform  and  alike  in  all  places  throughout 
the  nation. 

The  enactments  of  Congress  in  reference  to  adopting  the  form 
of  proceedings  and  practice  of  the  State  courts  apply  only  to 
suits  at  law,  and  have  no  influence  upon  the  equity  proceedings 
in  the  Federal  courts,  for  the  equity  jurisdiction  conferred 
upon  the  Federal  courts  is  uniform  in  all  parts  of  the  United 
States.  It  is  the  same  as  that  of  the  High  Court  of  Chancery 
in  England,  and  it  can  neither  be  modified  cr  restrained  by  legis- 
lation of  the  States. 3  The  action  of  these  national  courts  is  in 
their  own  sphere,  according  to  their  own  rules  of  proceeding;  and, 
within  their  sphere,  is  independent  of  the  State  legislation  and 
courts,  except  in  so  far  as  such  legislation  may  give  rise  to,  or 
become  rules  of  right,  or  may  be  adopted  by  such  national 
courts.'  And  when  the  citizenship  of  the  parties  and  the  amount 
in  controversy  are  such  as  to  confer  jurisdiction  on  these  courts, 
of  any  equitable  character,  they  may  exercise  the  same  and  dis- 
pose of  the  case,  irrespective  of  any  local  or  State  regulation  in- 
dicating the  manner  or  the  tribunal  for  disposition,  adjudication 
or  settlement  of  such  matters.*     The  absence  of  a  complete  and 

» Robinson  v.  Campbell,  3  "Wheat.  Relf,  15  Pet,  9 ;  Poultney  v.  Lafayette. 

212;  Livingston  v.  Story,  9  Pet.  632,  12  Pet.  473;  Exparte  Whitney,  13  Pet. 

655;  S.  C,  13  Pet.  359,  and  12  Pet.  404;  Livingston  c.  Story,  9  Pet.  655; 

339;   Gaines  v.  Relf,  15  Pet.  9;  Ex  Bein  c.  Heath,  12  How.  168;  Pennsyl- 

parte  Whitney,  13  Pet.  404 ;  Gaines  v.  vania  ©.Wheeling  Bridge  Co.,  13  How. 

Chew,  2  How.  609 ;  Poultney  v.  Lafay-  518. 

ette,  12  Pet.  473,  479.  » Hyde  v.  Stone,  20  How.  170 ;  Union 

"Payne  v.  Hook,  7  Wall.  425,  430;  Bank  v.  Jolly,  18  How.  503;  Suydaui 

Green  v.  Creighton,  23  How.  90 ;  U.  S.  v.  Broadnax,  14  Pet.  67 ;   Payne  «. 

V.  Howland,  4  Wheat.  108;  Pratt  v.  Hook,  7  Wall.    425,   430;    Beers   v. 

Northam,  5    Mas.  95 ;    Robinson    v.  Haughton,  9  Pet.  329, 

Campbell,  3   W^heat.  212 ;    Boyle  v.  *  Payne  v.  Hook,  7  Wall.  425,  429, 

Zacharie,  6  Pet.  348,  635;  Gaines  v.  430, 


CIRCUIT    COURT    JURISDICTIOIS^  41 

adequate  remedy  at  law  is  the  test  of  equitable  jurisdiction. 
This  test  is  to  be  applied  to  each  particular  cause,  as  the  nature 
thereof  is  disclosed  by  the  pleadings.^ 

III.       ClKCDIT    COUKT   JUEISDICTION   OF    ExECUTORS   AND   AdMINIS- 

TKATOES. 

The  jurisdiction  being  such,  it  results  that  a  citizen  of  one 
State  may  maintain  a  suit  in  chancery  against  an  administrator 
who  is  a  citizen  of  another  State,  in  the  circuit  court  of  the  dis- 
trict of  the  latter  State  wherein  such  administrator  resides,  not- 
withstanding the  laws  of  such  latter  State,  wherein  the 
administration  is  granted,  require  the  aifairs  of  the  administra- 
tion to  be  settled  in  a  particular  or  specified  court,  and  give  exclu- 
sive jurisdiction  thereof  to  such  State  court. ^  And  when  such 
suit,  against  the  administrator,  is  for  fraud,  and  to  obtain  an  ac- 
counting and  satisfaction  of  rights  of  a  complainant,  the  sureties 
of  the  administrator,  resident  in  the  State  wherein  the  suit  is 
brought,  are  properly  made  defendants,  inasmuch  as  equity,  by 
its  rules  and  practice,  disposes  of  the  whole  subject  matter  when 
jurisdiction  has  attached,  and  does  not  turn  a  party  over  to  the 
law  side  of  the  courts  to  consummate  or  obtain  possession  of  the 
fruits  of  the  suit,  and  therefore,  in  such  proceeding,  if  the  admin- 
istrator is  decreed  to  account  and  pay  over,  will  include  his 
bondsmen  in  the  decree,  if  in  court;  whereas,  if  not  permitted 
to  be  sued  with  the  principal,  the  result  would  be  a  subsequent 
action  or  suit  against  them,  if  the  administrator  should  not  be 
able  to  satisfy  the  decree,  or  the  same  be  not  otherwise  realized. ^ 

Though  State  laws  may  operate  as  a  rule  of  right  in  the  courts 
of  the  United  States,  in  the  several  States  respectively,  yet  these 
laws  cannot  confer  jurisdiction  on  a  United  States  court,  or  en- 
large, diminish,  restrict,  or  take  it  away.* 

Thus  the  circuit  courts  of  the  United  States,  with  their  full 
equity  powers,  have  jurisdiction  over  executors  and  adminis- 
trators, if  the  parties  are  of  the  proper  citizenship  as  to  different 

>  Payne    v.    Hook,    7    Wall.    425;  » Payne  ij.  Hook,7  Wall.  425, 432,433. 

Boyce's  Exrs.  v.  Grundy,  3  Pet.  210.  *  Steamboat  Orleans  ■».  Phoebus,  11 

^  Hyde  v.  Stone,  20  How.  170 ;  Union  Pet.  175 ;  Roach  v.  Chapman,  23  How. 

Bank  «.  Jolly,  18  How.  503;  Suydam  120;  Suydam  v.  Broadnax,  14  Pet.  67; 

«,  Broadnax,  14  Pet.  67.  Insurance  Co.  v.  Morse.  20  Wall.  445. 


42  INTER- STATE    EQUITY    JURISDICTION. 

States,  and  in  the  exercise  of  such  jurisdiction  will  enforce  the 
same  rules  in  adjusting  claims  against  them  that  are  enforced  in 
the  State  courts  as  between  their  own  citizens. ^  If,  in  such  a 
proceeding  in  the  United  States  court,  objection  be  made  that  it 
was  commenced  too  soon  after  jjerfecting  the  grant  of  adminis- 
tration, as  for  instance,  within  one  year,  when  by  the  State  stat- 
ute suits  may  not  be  commenced  against  executors  or  admin- 
istrators within  tliat  time,  then  the  objection,  to  be  available, 
must  be  made  at  the  earliest  practicable  stage  of  the  suit,  and 
will  not  be  allowed  if  made,  for  the  first  time,  at  the  trial.* 

IV.  Enjoining  of  Judgments  in  United  States  Court  in  Same 

Court. 

A  proceeding  in  equity  by  the  defendant,  to  enjoin  the  en- 
forcement of  a  judgment  rendered  against  him  in  a  United 
States  circuit  court,  is  but  an  incident  to  the  original  suit  in 
which  the  judgment  is  rendered,  and  is  not  to  be  regarded  as  an 
original  bill  or  distinct  proceeding.  Therefore  the  fact  that  the 
defendant  therein,  who  is  the  representative  of  the  plaintiff  in 
the  judgment,  being  a  citizen  of  the  same  State  as  the  com- 
plainant,  and  in  which  the  judgment  is  rendered,  does  not  mil- 
itate against  the  jurisdiction  of  the  court  to  entertain  the  bill.^ 

Judgment  of  State  Court.  Bankruptcy.  But  a  United  States 
court  may  not  enjoin  a  proceeding  of  a  State  court,  except  in 
cases  within  the  jurisdiction  in  bankruptcy.* 

V,  Injunction  in   State   Court,  Acting  on   the    Person  of 

Defendant. 

The  authority  of  courts  of  one  State  to  restrain  by  injunc- 
tion persons  within  its  jurisdiction  from  prosecuting  suits 
either  in  the  courts  of  such  State  or  in  the  courts  of  other  States, 
against  persons,  or  the  property  there  situate  of  persons,  resident 
in  the  State  wherein  the  injunction  is  asked,  is  fully  asserted.  Kot 
by  way  of  interference  with  the  course  of  proceedings  or  jurisdic- 

I  Walker  v.  Walker,  9  Wall.  743,  *  1  U.  S.  Stat,  at  Large,  334;  Dial  v. 

755 ;  Green  v.  Creighton.  23  How.  90 ;  Reynolds,  6  Otto.  340 ;  Diggs  v.  Wol- 

Harvey  v.  Richards,  1  Mas.  381.  cott,  4  Cr.  178 ;  Watson  v.  Jones,  13 

» Walker  v.  Walker,  9  Wall.  743.  Wall.  679,  719;    Peck  v.  Jenness,  7 

» Dunn  V.  Clark,  8  Pet.  1.  How.  625. 


INJUNCTIOJ^  IN  STATE  COURT.  43 

tion  of  courts  of  other  States ;  for,  to  this  end,  a  court  has  no  power; 
but  upon  the  principle  that  courts  of  equity  have  full  power  gver 
persons  within  their  jurisdiction  and  amenable  to  their  process, 
to  restrain  them  from  proceeding,  either  within  or  without  the 
State,  to  do  acts  which  are  wrongful  towards  other  residents,  and 
therefore  contrary  to  equity  and  good  conscience.^  The  State 
courts  cannot,  however,  enjoin  proceeding  in  the  courts  of  the 
United  States ;3  and,  as  has  been  seen,  the  latter  cannot  in  the 
former.  In  the  exercise  of  this  equitable  powder  a  court  will  restrain 
by  injunction  a  citizen  or  resident  within  its  jurisdiction  from  pros- 
ecutino;  an  attachment  suit  in  a  court  of  another  State  against  the 
personal  property  therein  situate  of  an  insolvent  debtor,  resident 
in  the  State  in  which  the  injunction  is  applied  for,  and  who  has 
made  a  general  assignment  therein  valid  in  law,  for  the  equal 
benefit  of  all  his  creditors,  when  the  result  of  such  attachment 
would  be  to  give  to  the  plaintiff  therein  a  priority  as  to  such 
property,  and  prevent  the  exercise  of  the  equitable  right  of  the 
assignee  over  the  same  for  the  equal  benefit  of  the  creditors. ^ 

To  Prevent  an  Attachment  as  Against  an  Assignee.  The  equita- 
ble right  of  the  assignee  in  such  case  is  paramount,  unless  some 
valid  claim  or  lien  exists,  under  the  laws  of  the  State  where  the 
property  attached  is  situated,  which  under  the  laws  of  that  State 
would  override  the  equity  of  the  assignment,  if  the  attachment 
was  abandoned.* 

Kor  does  it  matter,  as  between  the  equities  of  the  assignee 
and  the  attaching  plaintiff,  who  is  a  resident  of  the  same  State. 
as  the  assignee,  that  the  attachment  proceedings  be  set  on  foot 
prior  to  the  making  of  the  assignment,  if  commenced  with  in- 
tent to  obtain  a  preference  over  an  expected  assignment. ^  "By 
interposing  to  prevent  it,"  says  Bigelow,  J.,  "  we  do  not  inter- 
fere with  the  jurisdiction  in  other  States,  or  control  the  opera- 
tion of  foreign  laws.  We  only  assert  and  enforce  onr  own 
authority  over  persons  within  our  jurisdiction,  to  prevent  them 

1  Dehon   v.  Foster,  4  Allen,  545;  Bryan  ®.  Hickson,  40  Geo.  405;  Ken- 

Massie  v.  Watts,  6  Cr.  148, 158 ;  Briggs  dall «.  Windsor,  6  R.  I.  453 ;   Hines  v. 

V.    French,    1    Sum.   504 ;    Engel    v.  Ranson,  40  Geo.  356. 

Scheuerman,  40  Geo.  206 ;  Story's  Eq.  ^  Dehon  v.  Foster,  4   Allen,    545  ; 

Jur.  §§  899-901;  Hilliard  on  Injunc-  Same  v.  Same,  7  Allen,  57. 

tions,  266-273.  *  Delion  v.  Foster,  7  Allen,  57. 

^U.  S.  «.  Keokuk,  6    Wall.  514;  «  Dehon  c.  Foster,  4  Allen,  545. 


44  INTER-STATE    EQUITY    JURISDICTION. 

from  making  use  of  means  by  which  they  seek  to  countervail  and 
€seape  the  operation  of  our  own  laws,  in  derogation  of  the  rights, 
and  to  the  wrong  and  injury  of  our  own  citizens."^  This  case 
was  simply  a  controversy  between  the  domestic  creditors  of  the 
insolvent  assignor,  and  did  not  involve  the  rights  of  citizens  of 
the  State,  or  residents  thereof,  wherein  the  attachment  proceed- 
ings were  pending.  The  assignment  being  valid  where  made,  is 
valid,  within  the  rules  of  comity,  elsewhere,  when  not  in  deroga- 
tion of  the  policy  or  law  of  the  other  State,  and  does  not  derogate 
from  the  rights  of  creditors  resident  therein;  and,  as  personal 
property  is  without  a  locality,  and  its  disposition  is  controlled  by 
the  laws  of  the  owner's  domicile^  and  not  by  those  of  the  local- 
ity where  it  happens  to  be,  such  being  the  general  principle,  it 
follows  that  the  transfer  by  assignment,  when  valid  where  made, 
is  valid  everywhere  else,  subject  to  the  limitation  that  it  is  not 
to  have  an  effect  contrary  to  the  laws  and  policy  of  other  States, 
as  to  the  injury  of  the  citizens  or  residents  of  the  States  whose 
laws  are  invoked  to  carry  it  out.^  By  the  rule  laid  do^vn  in 
Massachusetts,  if  the  attaching  creditor  be  resident  in  or  a  citi- 
zen of  the  State  wherein  is  pending  the  attachment  proceeding, 
then,  in  the  courts  of  that  State,  the  attachment  overrides  the 
foreign  assignment,  for  the  law  of  comity  does  not  require  the 
courts  of  a  State  to  enforce  its  own  laws  in  favor  of  contracts 
made  in  other  States,  to  the  detriment  of  the  rights  of  its  own 
citizens  or  inhabitants.' 

'  Dehon  v.  Foster,  4  Allen,  645.  ^  Ingraham  v.  Geyer,  13  Mass.  146 ; 

^  Dehon  v.  Foster,  4  Allen,  545, 553 ;  Boyd  v.  Rockport  Steam  Mills,  7  Gray, 

Wales  tJ.  Alden,  22  Pick.  245 ;  Cragin  406;    Zipcey  B.Thompson,   1   Gray, 

«.  Lamkin,  7  Allen,  395  ;  Swearingen  243;  Cragin  v.  Lamkin,  7  Allen,  395. 
V.  Morris,  14  Ohio  St.  424;  Martin  «. 
Potter,  11  Gray,  37. 


IlfTEE-STATE    LAW    OF    CONTEACTS.  45 


CHAPTEE   YIII. 

ioti;e-state  law  of  contbaots. 

I.  The  Law  of  the  Contract. 

11.  The  Law  of  Performance. 

III.  The  Law  op  the  Remedy. 

IV.  Statutory  Bonds  made  in  State  Proceedings. 

V.  Statutory  Bonds  taken  in  National  Proceedings. 

VI.  Rule  op  Damages. 

VII.  Contracts  Made  with  a  View  to  Violate  Laws  op  Another 

State. 

VIII.  Statute  of  Frauds. 

IX.  Commercial  Paper  and  Endorsement  Thereof. 

X.  Mortgage  Lien. 

XL  Laborer's  Lien. 

XII.  Contracts  of  Affreightment. 

XIII.  Warehouse  Receipts. 

XIV.  Stoppage  in  Transitu. 

XV.    Inviolability  op  Contracts. 
XVI.    Usury. 

I.    The  Law  of  the  Conteaot. 

It  is  a  general  principle  that  the  validity,  force  and  mean- 
ing of  contracts  which  are  expressed  to  be  performable  where 
made,  or  which  do  not  purport  to  be  performable  at  any  par- 
ticular place  whatever,  are  governed  by  the  law  of  the  place 
where  the  contract  is  entered  into,  as  the  same  existed  at 
the  date  of  the  contract.  Thus,  when  a  contract  is  made  in  a 
particular  State,  and  is  performable  in  the  same  State,  or  is 
not  expressly  or  impliedly  performable  in  any  particular  State, 
or  place,  then  the  sufficiency  of  its  execution,  and  its  validity 
and  meaning,  are  all  determinable  by*  the  laws  of  the  State 
wherein  it  was  made.  If  valid  there,  it  is  valid  wherever  and  in 
whatever  other  State  it  is  sought  to  be  judicially  enforced,  if  not 
in  its  character  repugnant  to  the  laws  and  policy  of  such  latter 
State.  Therefore,  in  the  enforcement  of  a  contract  performable 
at  no  particular  place,  in  a  suit  thereon  in  the  court  of  a  different 


46 


INTER-STATE    LAW    OF    CONTRACTS. 


State  than  the  one  in  which  the  contract  was  made,  the  court,  as 
a  general  rule,  will  look  to  and  enforce  the  law  of  the  State  where 
the  contract  was  entered  into,  in  reference  to  all  matters  involv- 
ing its  execution,  validity  and  meaning.  In  these  respects,  tliQ 
lex  loci  contractus^  or  law  of  the  contract,  prevails.  *  In  the 
language  of  the  Supreme  Court  of  the  United  States,  in  the  re- 
cent case  oi Scudder  v.  The  Union  National  Bank^^  Hunt,.  J.: 
"Matters  bearing  upon  the  execution,  interpretation,  and  the 
validity  of  a  contract,  are  determined  by  the  law  of  the  place 
where  the  contract  is  made."  Accordingly,  where  a  contract  is 
repugnant  to  the  law  of  the  State  wherein  it  is  made,  and  is  part 
performable  there,  it  is  void,  although  it  contemplates  perform- 
ance, in  part,  somewhere  else,  the  contract  being  of  a  nature 
entire  and  indivisible;  thus,  a  contract  was  made  in  the  State  of 
Iowa,  for  transportation  of  live  stock,  partly  in  said  State  and 
partly  in  the  State  of  Illinois,  to  tlie  city  of  Chicago,  the  con- 
tract containing  a  clause  limiting  the  common  law  liability  of 
the  carriers,  while  at  that  time  a  statute  was  in  force  in  Iowa  de- 
claring that  "  no  contract,  receipt,  rule,  or  regulation,  shall  ex- 
empt "  a  "  railroad  or  other  company,  person  or  firm,  from  the 


*  Scudder  e.  Union  National  Bank, 
1  Otto,  406,  412,  413 ;  Dacostac.  Davis, 
4  Zab.  319;  Miller  «.  Tiffany,  1  Wall. 
•298,  810;  Depeau  t.  Humphry,  20 
How.  1 ;  Chapman  n.  Robertson,  6 
Paige,  627,  634;  Andrews  v.  Pond,  13 
Pet.  65;  Shafer  v.  Bolander,  4  G. 
Greene,  201 ;  Savary  t.  Savary,  3  Iowa, 
•271;  Davis  •».  Bronson,  6  Iowa,  410; 
Cox  e.  U.  S.,  6  Pet.  172;  Mathuson  ©. 
Crawford,  4  McL.  540 ;  Camfranque  v. 
Burnell,  1  Wash.  C.  C.840;  Caldwell 
.«.  Carrington,  9  Pet.  86 ;  Pope  v.  Nick- 
•erson,  3  Story,  465,  474;  Duncan  «.  U. 
S.,  7  Pet.  435 ;  Courtois  v.  Carpenter,  1 
Wash.  C.  C.  376 ;  Bank  of  Augusta  v. 
Earle,  13  Pet.  520;  Willings  v.  Conse- 
■qua.  Pet.  C.  C.  302 ;  Bank  of  U.  S.  t>. 
Donnelly,  8  Pet.  361 ;  Wilcox  v.  Hunt, 
13  Pet.  378;  Smith  «.  Godfrey,  28  N. 
H.  379;  French  ©.  Hall,  9  N.  H.  187; 
Whiston  n.  Stodder,  8  Martin,  95; 
Smith  t.  Mead,  3  Conn.  253 ;  Hough- 
ton ».  Page,  2  N.  H.  42 ;  Greenwood 


•0.  Curtis,  6  Mass.  358,  376;  Blanchard 
C.Russell,  18  Mass.  1,  4;  Arnold  v. 
Potter,  22  Iowa,  194;  Boyd  t>.  Ellis,  11 
Iowa,  98;  Franklin  «.  Twognod,  25 
Iowa,  520 ;  Carnagie  "o.  Morrison,  2 
Met.  897;  Dater  v.  Earle,  8  Gray,  482; 
Warder  v.  Arell,  2  Wash.  (Va.)  282, 
298;  Seymour  v.  Butler,  8  Iowa,  804; 
De  Wolf  V.  Johnson,  10  Wheat.  367 ; 
Fisher  b.  Otis,  3  Chand.  83;  Anstedt 
«.  Sutter,  30  111.  164;  Short  «.  Trabue, 
4  Met.  (Ky.)  299 ;  Jamespn  v.  Gregory, 
ibid.  368;  Mclntire  t.  Parks,  3  Met. 
(Ky.)  207;  Barry  ».  Equitable  Life 
Asso.,  59  N.  Y.  587,  594;  Evans  t.  An- 
derson,  78  111.  558;  Downer  v.  Chese- 
brough,  36  Conn.  89 ;  Klinck  v.  Price, 
4  West  Va.  4 ;  Levy  v.  Levy,  78  Penn. 
St  507 ;  Story's  Conf.  of  Laws,  §  243 
^  seq.;  Wharton's  Conf.  of  Laws,  § 
A01%;  Foote's  Priv.  International 
Law,  287  et  seq. 
» 1  Otto,  406. 


LAW    OF    THE    CONTEACT.  47 

full  liabilities  of  a  common  carrier,  which,  in  the  absence  of  any 
contract,  receipt,  rule,  or  regulation,  would  exist,"  in  respect  to 
the  property  or  persons  undertaken  to  be  carried;  the  Supreme 
Court  of  Iowa  held  the  contract  void,  as  in  violation  of  said 
statute,  notwithstanding  the  objection  urged  to  such  ruling  that 
the  contract  was  in  part  performable  in  Illinois,  where,  in  law, 
such  limitation  of  liability  was  permissible. ^  So,  if,  according 
to  the  law  of  the  place  where  a  contract  is  executed  or  made,  it 
be  inoperative  or  void ;  or,  being  valid  when  made,  thereafter  is 
satisfied  or  discharged,  it  will  then  be  so  treated  and  regarded  in 
law  in  all  other  States  in  which  its  validity  or  enforcement  is  ju- 
dicially drawn  in  question. 2  Change  of  place  cannot  change  the 
rights  or  liabilities  of  parties.  Thus,  if  by  law  of  the  State 
wherein  a  promissory  note  is  made,  such  note  may  not  be  trans- 
ferable by  endorsement,  or  being  transferable  by  endorsement, 
yet  if  an  endorsement  thereof  in  such  State  is,  for  any  reason, 
invalid  by  the  local  law,  then  such  transfer  will,  in  either  case, 
be  held  invalid  in  all  other  States  wherein  the  same  may  be  ju- 
dicially sought  to  be  enforced. ^  And  where  a  contract  thus 
entitled  to  be  governed  as  to  its  validity  by  the  law  of  the  State 
wherein  it  is  made,  is  secured  by  mortgage  on  real  estate  situated 
in  a  different  State,  without  any  provision  for  or  indication  that 
payment  thereof  is  to  be  performed  in  the  latter  State,  then  the 
mere  fact  of  taking  local  security  in  such  other  State  will  not 
affect  the  validity  of  the  contract,  although  there  be  that  in  the 
contract  itself  which  would  invalidate  the  same,  if  made  in,  or  to 
be  performed  in,  such  latter  State.* 

1  McDaniel  v.  Chicago  &  N.  W.  R,  30  111.  164 ;  Bliss  v.  Brainard,  41  N. 
R.  Co.,  24  Iowa,  413.  H.  256 ;   Duncomb  v.  Bunker,  3  Met. 

2  Webster  v.  Massey,  2  Wash.  C.  C.  8 ;  Palmer  v.  Yarrington,  1  Ohio  St. 
157;  Green  v.  Sarmiento,  3  Wash.  C.  253;  Shelton  v.  Marshall,  16  Tex.  344; 
C.  17;  S.  C.  Pet.  C.  C.  74;  Warders.  Thompson  v.  Ketcham,  8  John.  190; 
Arcll,  3  Wash.  (Va.)  283.  But  it  does  Ford  v.  Buckeye  State  Ins.  Co.,  G 
not  follow  that  a  release  of  one  part-  Bush,  133;  Titus  v.  Scantling,  4 
ner,  in  writing,  avowedly  designed  to  Blackf.  89 ;  Moore  v.  Clopton,  23  Ark. 
release  but  the  one,  will  be  treated  as  135.  See,  also,  references  made  mite, 
a  release    of   others,   though    made  p.  40,  note  1. 

where  the  obligation  was  contracted,  ^  McClintick  v.   Cummins,  3   Mc- 

but  may  be  treated  as  an  undertaking  Lean,  158 ;  Roosa  «.  Crist,  17  111.  450 ; 

not  to  sue  the  party  purporting  to  be  Carlisle  v.  Chamber,  4    Bush,   268; 

released.    Seymour  v.  Butler,  8  Iowa,  Bishop  on  Contracts,  §  730. 

304.    McDaniel  v.  Chi  &  N.  W.  R  R.  "  De  Wolf  i\  Johnson,  10  Wheat. 

Co.,  24  Iowa,  413 ;  Anstedt  v.  Sutter,  868 ;  Bethell  v.  Bethell,  54  Ind.  428. 


48  INTER-STATE   LAW   OF   CONTRACTS. 

Thus,  where,  as  in  the  case  just  cited,  a  contract  and  loan  of 
money  was  made  in  Rhode  Island,  embodying  a  usurious- 
transaction  by  the  laws  of  Rhode  Island,  as  also  by  the 
laws  of  Kentucky,  and  real  estate  security  was  taken  in  the  State 
of  Kentucky,  it  was  held  that  the  laws  of  Rhode  Island  gov- 
erned as  to  the  effect  of  the  usury  on  the  validity  of  the  con- 
tract, and  that,  therefore,  while  by  the  law  of  Kentucky  such  a^ 
contract,  if  there  made,  or  payable  there,  would  be  void,  but  by 
the  laws  of  Rhode  Island  would  only  subject  the  party  to  a  pen- 
alty, the  latter  was  lield  to  be  the  law  of  the  contract,  and  it  was 
enforceable  by  the  law  of  Kentucky.  ^ 

The  case  of  Anstedt  v.  Sutter,  above  referred  to,  was  an  action 
in  a  court,  of  Illinois,  for  an  indebtedness  accruing  in  Missouri, 
for  the  price  of  wine  sold  to  defendant  in  Missouri,  on  a  credit, 
in  violation  of  a  statute  of  that  State,  declaring  all  contracts  for 
sale  of  liquors,  on  a  credit,  void.  The  courts  of  Illinois  held,  in 
accordance  with  the  general  doctrine,  that,  the  contract  being 
void  where  made,  was  void  everywhere  else.  The  contract  was 
a  general  one,  as  to  time  and  place  of  payment,  and  therefore 
necessarily  rested  on  the  law  of  Missouri  for  its  validity.^ 

Transactions  bearing  Relation  to  Several  States.  A  note  made 
in  one  State,  at  a  rate  of  interest  lawful  in  that  State,  and  se- 
cured by  a  mortgage  lien  on  lands  situated  in  such  State,  and 
which  instruments  were  for  money  loaned  by  a  citizen  of  a  dif- 
ferent State,  and  were  delivered  to  him  in  such  other  State  where 
the  contract  of  loan  was  agreed  to,  was  held  to  be  legal  and  en- 
forceable in  the  courts  of  the  State  where  the  land  was  situate,. 
and  where  the  debtor  resided  at  the  time  of  making  the  contract, 
as  also  of  enforcing  the  same,  although  such  instruments  called 
for  a  greater  interest  than  allowed  by  law  in  the  State  where  the 
contract  was  agreed  on  and  the  instruments  were  delivered,  and 
although  in  such  latter  State  a  forfeiture  of  the  debt  is  incurred 
for  usury.  The  ruling  was  that  the  whole  transaction  had  refer- 
ence to  the  laws  of  the  State  where  the  land  was  situate,  the 
debtor  resided,  and  the  instruments  were  made,  although  the 

'  De  "Wolf  V.  Johnson,   10  Wheat.  also,  Hill  v.  Spear,  50  N.  H.  253;  Teg- 

368;  Levy  v.  Levy,  78  Penn.  St.  507;  ler  v.  Shipman,33Iowa,19'l;  Boothby 

Phila.  Loan  Co.  «.  Towner,  13  Conn.  «.  Plaisted,  51  N.  H.  436 ;  Webber  «.. 

249.  Howe,  36  Mich.  150. 

*  Anstedt «.  Sutter,  30  HI.  164.   See, 


TRAILS  ACTIONS    BEAEIISTG    RELATION    TO    STATES.       49 

latter  were  delivered  elsewhere,  as  above  stated,  and  notwith- 
standing, also,  that  the  notes  were  made  payable  in  a  still  differ- 
ent State  than  that  wherein  they  were  made  or  delivered,  or 
wherein  either  party  resided.  ^ 

Thus,  a  note,  and  mortgage  made  in  Michigan  to  secure  the 
same,  on  real  property  therein  situated,  calling  for  interest  at  ten 
per  centum  per  annum,  a  rate  of  interest  legal  in  Michigan,  is 
binding  and  valid,  although  the  note  be  payable  in  Kew  York, 
where  such  interest  is  usurious.  Such  a  contract  is  a  Michigan 
and  not  a  New  York  contract,  and  is  therefore  governed  by  the 
laws  of  Michigan  as  to  its  validity.^ 

And  so,  a  note  made  payable,  with  lawful  interest,  in  the  State 
where  made,  wherein  also  both  maker  and  endorser  reside,  being 
valid  in  the  State  where  made,  does  not  become  usurious  by 
being  discounted  in  another  State  at  a  discount  greater  than  the 
rate  of  interest  there  allowed  by  law.^  And  a  contract  of  insur- 
ance, made  with  an  insurance  company  of  one  State,  and  dated 
and  executed  by  the  president  and  secretary  in  that  State,  but 
not  to  become  obligatory  until  countersigned  and  delivered  by 
the  agent  of  the  company,  in  another  State,  is  deemed  to  have 
been  made  when  so  countersigned  and  delivered  in  the  latter 
State,  and  is  governed  by  the  laws  thereof.^ 

Contracts  made  in  one  State,  and  performable  in  another,  as  a 
subterfuge  or  shift,  rest  for  their  validity  on  the  lex  loci,  or  law 
of  the  place  where  made.^  Contracts  which  are  valid  in  the 
State  where  made,  bat  which  are  to  be  performed  in  a  State 
where  they  are  invalid,  will  be  held  in  the  former  State  as  gov- 
erned by  the  law  of  the  latter  State,  and  therefore  invalid.^  But 
contracts  invalid  by  the  law  of  the  State  where  made,  yet  valid 
by  the  law  of  the  State  where  they  are  to  be  performed,  will  be 
held  valid  in  the  former.  "^ 

The  personal  executory  contracts  of  an  Indian,  made  within 
the  territorial  jurisdiction  of  a  State,  is  governed  as  to  its  valid- 

»  Arnold  v.  Potter,  23  Iowa,  194.  »  Andrews  v.  Pond,  13  Pet.  65. 

«  Fitch  V.  Remer,  1  Biss.  337;  Phil-  « Ibid.;  Story  on  Conf.  of  Laws,  § 

adelphia  Loan  Co.  v.  Towner,  13  Conn.  304a. 

249 ;  Levy  ®.  Levy,  78  Penn.  St.  507.  'Arnold  -p.  Potter,  22    Iowa.   194; 

*  Ilackettstown  Bank  v.  Rea,  6  Lans.  Junction  Railroad  v.  Ashland  Bank, 
455.  12  Wall.  226;  Kennedy  v.  Knight,  21 

*  Daniels  n.  Hudsoa  R.  Ins.  Co.,  12  Wis.  340;  Bishop  on  Contracts,  §  726. 
Cush.  416. 

4 


50  INTER-STATE    LAW    OF    CONTRACTS. 

ity  by  the  laws  of  that  State,  if  there  is  no  law  of  Congress  pro- 
hibiting the  making  of  such  contract,  or  if  it  is  not  contrary  to 
the  policy  of  the  national  government;^  and  though  a  general 
contract,  sued  on  in  another  State  than  where  made,  be  such  that 
if  made  where  sued  it  would  not  be  valid  in  law,  yet  if  valid  in 
the  State  where  made,  and  not  contrary  to  good  morals,  and  it 
was  not  in  the  making  thereof  contemplated  to  violate  the  laws 
of  policy  of  the  State  where  sued,  it  will  be  therein  enforced,  by 
the  principles  of  comity.'  But  if  vicious  in  principle,  or  con- 
trary to  good  morals,  or  if  it  is  calculated  to  contravene  the  policy 
or  laws  of  the  State  where  sought  to  be  enforced,  then  the  courts 
thereof  will  not  enforce  the  same.^ 

When  the  validity  of  a  contract  involves  the  laws  of  two  or 
more  States,  and  it  is  not  expressly  apparent  which  the  parties 
had  in  view,  then  that  law  which  is  most  favorable  to  validity 
will  be  regarded  as  the  law  of  the  contract.* 

II.     The  Law  of  Peefokmance. 

The  Law  of  the  Place  of  Performance  is  the  Law  of  Performance. 

The  law  of  the  place  where  performance  is  to  occur  governs  in 
respect  to  the  validity  and  performance  of  contracts,  made  in  one 
State,  but  to  be  performed  in  another.  As,  for  instance,  in  com- 
mercial contracts,  the  time,  manner,  and  circumstances  of  pre- 
sentation or  demand,  for  acceptance,  payment,  or  protest;  the 
rate  of  interest  if  none  be  designated,  and  whatever  else  relates 
to  the  fulfillment  of  contract  or  obligation. **  To  quote  again  from 
our  highest  national  court:  "  Matters  connected  with  *  *  * 
performance  are  regulated  by  the  law  prevailing  at  the  place  of 

•Taylor  v.  Drew,  21  Ark.  485.  Windsor  v.  Jacob,  2  Tyler,  (Vt.)  192. 

»  Greenwood  v.  Curtis,  6  Mass.  358,  *De  Wolf  v.  Johnson,  10  Wheat. 

378;  Adams  v.  Gay,  19  Vt.358;  Crosby  367;  Arnold  v.  Potter,  22  Iowa,  194; 

V.  Berger,  3  Edw.  Ch.  538 ;  Blanchard  Talbott  v.  Merchants'  Disp.  &  Trans. 

V.  Russell,  13  Mass.  1 ;  Bliss  v.  Brain-  Co.,  41  Iowa,  247,  251. 

ard,  41  N.  H.  256  ;  Phinney  v.  Bald-  »  Young  v.  Harris,  14  B.  Mon.  447; 

win,  16  111.  108  ;  Story's  Conf.of  Laws,  Pomeroy  v.  Ainsworth,  22  Barb.  118; 

§  242  et  seq.  Scudder  v.  Union  National  Bank,  1 

»Pearsall  v.  Dwight,  2  Mass.  84;  Otto,  406,  413;   Hayden  v.  Davis,  3 

Davis  V.  Bronson,  6  Iowa,  410;  Arm-  McL.  276  ;  Arnold  v.  Potter,  22  Iowa, 

strong  V.  Toler,  11  Wheat.  258;  Com-  194;  Boyd  v.  Ellis,  11  Iowa,  98;  Cook 

luonwealth   v.  Aves,   18   Pick.   193 ;  v.  Moffat,  5  How.  295 ;  Butler  v.  Myor, 

Phinney   v.    Baldwin,    16    111.   108;  17  Ind.  77;  Thayer  c.  Elliott,  16  N.  H. 

Greenwood  ©.Curtis,  6   Mass.  358;  102 ;  Andrews  c.  Pond,  13  Pet.  77. 


LAW    OF    PERFORMANCE.  51 

performance."^  Thus  notes  drawn  in  one  State  and  delivered  and 
payable  in  another,  for  purchases  made  there,  are  governed  by 
the  law  of  the  latter  State,  and  are  considered  there  made;^  for 
by  delivery  only,  the  act  of  making  is  fully  consummated.  If,  in 
such  case,  nothing  be  said  in  the  notes  as  to  interest,  then  interest 
is  allowable  according  to  the  law  where  the  same  are  payable. ^ 
The  parties,  however,  may  expressly  stipulate  in  the  instruments 
themselves,  for  such  interest  as  is  allowable  in  either  State*  (but, 
semble,  not  for  interest  in  conformity  to  the  law  of  a  still  different 
or  third  State). 

Performance  in  Two  DiflFerent  States.  The  principle  of  the 
law,  however,  that  performance  is  to  be  in  accordance  with  the 
law  of  the  place  at  which  performance  is  provided  for  by  the 
contract,  does  not  apply  to  contracts  performable  in  parts,  and 
which  are  performable  partly  in  one  State  and  partly  in  another. 
It  is  said  that,  in  such  cases,  the  law  of  the  place  where  the  con- 
tract is  made  prevails.  ^ 

But  if  a  contract  be  entire,  and  indivisible,  and  is  to  be  partly 
performed  in  the  State  where  it  is  made,  and  partly  in  another, 
then  the  lex  loci  contractus,  or  law  of  the  State  where  it  is  made, 
governs  as  to  its  validity;  and,  if  invalid  there,  it  is  invalid 
everywhere  else.^  The  case  of  McDaniel  v.  The  Chicago  c5 
Northwestern  Railroad  Company  grew  out  of  a  contract  for 
transportation  of  cattle,  from  Clinton,  Iowa,  to  Chicago,  in 
Illinois.     The  contract  was  made  in  Iowa,  and  the  property  there 

'  Scudder  v.  Union  National  Bank,  payment  of  the  principal  and  legal 

1  Otto,  406,  413.  interest. 

2  Cook  ».  Moffat,  5  How.  295 ;  Lee  *  Arnold  v.  Potter,  22  Iowa,  194, 
•0.  Selleck,  33  N.  Y.  615.  198;  Butters  «.  Olds,  11  Iowa,  1 ;  Peck 

3  Arnold  'c.  Potter,  22  Iowa,  194;  «.  Mayo,  14  Vt.  33;  Smith  v.  Smith,  2 
Butters  v.  Olds,  11  Iowa,  1 ;  Peck  «.  John.  236 ;  Thompson  v.  Ketcham,  4 
Mayo,  14  Vt.  33;  Parson's  Mercantile  John.  285;  Cox  v.  U.  S.,  6  Pet.  172; 
Law,  321.  But  though  a  note  be  so  Andrews  v.  Pond,  13  Pet.  65. 
affected  with  usury,  by  the  law  where  *  Morgan  ■».  New  Orleans  R.  R.  Co., 
it  is  made,  as  would  there  incur  a  2  Woods,  244.  So,  also,  where  prac- 
forfeiture  on  account  thereof,  yet  such  tical,  the  laws  of  the  respective  States 
/o?/<3i^M?'e  cannot  be  enforced  affirma-  will  be  applied  to  such  part  of  the 
tively  in  another  State,  in  a  suit  on  contract  as  is  to  be  performed  in  each, 
such  note.  The  court  there  will  Pomeroy  v.  Ainsworth,  22  Barb.  118 ; 
neither  enforce  the  forfeiture  nor  the  Glenn  v.  Thistle,  23  Miss.  42. 
usury.  Wright  v.  Bartlette,  43  N.  H.  «  McDaniel  v.  The  Chicago  &  N.W. 
648.     They  will  simply  enforce  the  R.  R.  Co.,  24  Iowa,  412. 


62  INTER-STATE    LAW    OP    CONTRACTS. 

received  by  the  railroad.  The  contract  contained  a  clause  re- 
stricting the  liability  of  the  railroad  company  for  loss  in  carria<^e, 
which,  in  effect,  violated  a  law  of  Iowa,  inhibiting  such  restric- 
tions and  declaring  them  void.  On  a  trial  in  Iowa,  growing  out 
of  a  loss  in  carriage,  the  question  arose  as  to  the  law  of  the  con- 
tract, and  it  was  held  that  the  Iowa  law  was  the  law  of  the  con- 
tract; that  the  restriction  was  inoperative,  and  that  the  rule  of 
the  common  law  was  to  apply  to  the  case.  The  court.  Cole,  J., 
say:  "The  contract  being  entire  and  indivisible,  made  in  Iowa, 
and  to  be  partly  performed  here,  it  must,  as  to  its  validity,  na- 
ture, obligation  and  interpretation,  be  governed  by  our  law.  And 
by  our  law,  so  far  as  it  seeks  to  change  the  common  law,  it  is 
wholly  nugatory  and  inoperative.  The  rights  of  the  parties, 
then,  are  to  be  determined  under  the  common  law,  the  same  as 
if  no  such  contract  had  been  made."i 

III.    The  Law  of  the  Kemedy.     Lex  Fori. 

Tlie  law  of  the  forum,  or  place  where  suit  is  brought,  governs 
as  regards  the  remedy  in  the  enforcement  of  contracts.  Thus,  con- 
tracts made  in  one  State,  and  enforced  by  suit  in  another,  whether 
made  in  expectation  of  performance  in  such  latter  State,  or  made 
without  any  designated  place  of  performance,  as  for  Instance,  a 
general  promise  to  pay  a  sura  of  money,  are  governed,  in  their 
legal  enforcement,  by  the  laws  of  the  place  where  the  suit  is 
brought,  as  to  all  things  pertaining  to  the  remedy.  2  In  the  lan- 
guage of  the  United  States  Supreme  Court:  "Matters  respect- 
ing the  remedy,  such  as  the  bringing  of  suits,  admissibility  of 
evidence,  statutes  of  limitation,  depend  upon  the  law  of  the 
place  where  the  suit  is  brought."* 

Pleadings  and  evidence  are  matters  strictly  appertaining  to  the 
remedy,  and,  in  respect  to  their  sufficiency  and  admissibility, 

'  24  Iowa,  417,  418.  hart,  3  Gill  &  J.  234 ;  Andrews  «.  Her. 

*  Scudder  v.  Union  National  Bank,  riot,  4  Cow.  508;   Scoville  v.  Canfield, 

1  Otto,  406.  413;  Williams  tJ.  Haines.  14  John.  338;  Broadhead  v.  Noyes,  9 

27   Iowa,  251 ;  Sturges  v.  Crownin-  Mo.  56 ;  Wharton's  Conf.  of  Laws,  § 

shield,  4  Wheat.  122;  Ogden  v.  Saun-  741  et  seq.;  Foote's  Private  Interna- 

ders,  12  Wheat.  213;  Douglas  t?.  Old-  tional    Law,  413;    Story's   Conf.  of 

ham,  6  N.  H.  150;  Bank  of  U.  S.  v.  Laws,  556,  557. 
Donnally,   8    Pet.   301;    Warren   v.         *  Scudder ».  Union  National  Bank, 

Lynch,  5  John.  239 ;  Thrasher  v.  Ever-  1  Otto,  406,  413. 


LAW    OF    THE    REMEDY.  53 

come  within  the  rule  of  being  governed  by  the  law  of  the  forum^ 
or  place  where  the  trial  is  had.  The  case  here  cited  very  fully 
illustrates  the  application  of  this  principle.  It  was  an  action  in 
a  court  of  Iowa,  upon  a  sealed  instrument  for  the  payment  of 
money,  executed  in  the  State  of  Maryland;  an  instrument  of  such 
a  character  as  is  usually  termed  a  writing  obligatory.  The  com- 
mon law  rule  was  shown  to  have  prevailed  in  Maryland,  by  the 
pleadings,  at  the  date  of  the  instrument,  and  that  thereby  the 
consideration  for  which  the  instrument  was  given  could  not  be 
brought  in  question  by  a  plea  of  want  of  consideration.  But  the 
court  held  to  the  contrary,  and  the  Supreme  Court  of  Iowa 
affirmed  the  decision,  upon  the  principle  that  the  question  was 
one  as  to  the  remedy  merely,  and  was  governed  by  the  law  of  the 
forum,  which  had  abolished  the  common  law  distinction  and 
permitted  the  consideration  of  sealed  as  well  as  unsealed  instru- 
ments to  be  enquired  into  by  pleadings  and  evidence.  ^  In  this 
case,  the  Supreme  Court  of  Iowa,  Dillon,  J.,  say:  "The  plain- 
tiff must  take  such  remedy  as  our  laws  afford  him.  -5^  *  * 
Kespecting  what  shall  be  good  defenses  to  actions  in  this  State, 
its  courts  must  administer  its  own  laws,  and  not  those  of  other 
States."  *  *  *  And,  "our  act  of  the  legislature,  allowing  the 
defense  of  want  of  consideration  to  be  pleaded  to  all  actions  on 
subsequent  sealed  contracts,  is  a  matter  relating  to  the  remedy, 
and  does  not  impair  the  ohligation  of  the  contract  within  the 
meaning  of  the  authoritative  adjudications  of  the  Supreme  Court 
of  the  United  States." 

Whenever  a  remedy  by  suit  is  sought,  the  plaintiff  takes  such 
remedy  as  the  law  of  the  forum,  or  place  of  suit,  affords,  whether 
suit  be  in  a  State  court  or  in  a  United  States  court.  This  is  so, 
not  only  as  to  the  law  of  trial,  but  also  as  to  the  enforcement 
of  any  judgment  that  may  be  obtained.  Hence,  as  exemption 
laws  pertain  to  the  remedy,  exemption  from  execution  sale 
depends  upon  the  law  of  the  forum,  and  not  upon  the  lex  loci 
C07itractu8.'^ 


'  Williams  ».  Haines,  27  Iowa,  251.  vate  International  Law,  424  and  431. 

See,  also,  U.  S.«.  Donnally,  8  Pet.  361 ;  «  Newell  v.  Hayden,  8   Iowa,  140; 

Le  Roy  V.  Beard,  8  How.  451 ;  Warren  Helfenstein  v.  Cave,  3  Iowa,  287. 
».  Lynch,  5  John.  239;  Foote's  Pri- 


54  tNTEE-STATE   LAW   OF   CONTRACTS. 


IV.    Statutory  Bonds  in  State  Proceedings. 

What  Statutory  Obligations  are  Local.  As  a  general  principle, 
all  statutory  bonds,  obligations  and  recognizances  entered  into 
in  the  course  of  judicial  proceedings,  and  in  accordance  with  the 
statute  law  of  the  forum  where  taken,  made  or  executed,  and  in 
reference  to  snch  proceedings,  as,  also,  official  bonds  for  the 
faithful  performance  of  statutory  duties,  the  manner  of  enforce- 
ment of  which  are  defined  by  statute,  are  local  in  their  nature, 
and  the  enforcement  thereof  is  confined  to  the  courts  of  the  sov- 
ereignty or  State  where  made  or  entered  into.  Tlie  taking  and 
enforcement  thereof  is  a  part  of  the  internal  policy  of  the  State, 
and  the  means  by  which  the  State  regulates  its  own  internal  con- 
cerns and  conducts  its  official  business,  and,  inasmuch  as  they  are 
thus  local,  they  cannot  be  enforced  by  suit  in  the  courts  of  an- 
other State,  either  by  jproprio  vigore  of  such  statute  laws,  or  upon 
the  principles  of  comity.^  No  State  interferes  with  the  internal 
affairs  of  another,  nor  will  enforce  obligations  entered  into  with 
a  view  thereto,  and  intended  to  operate  only  in  aid  thereof.* 

Such  securities  are  unlike  those  personal  obligations  which 
occur  between  men  in  their  ordinary  transactions  of  life,  and 
which  are  made  by  private  persons,  as  evidences  of  private  right, 
and  which  rest  for  validity  upon  the  general  principles  of  the 
common  law,  and  are  made  without  regard  to  any  local  regula- 
tions for  their  validity  or  enforcement,  and  are,  therefore,  of  equal 
legal  and  moral  force,  wherever  the  parties  may  thereafter  be,  and 
which,  following  the  person,  will  be  enforced  in  all  countries 
where  the  rights  and  liabilities  of  contracts  are  by  general  law 
recognized  and  enforced. 3 

What  Statutory  Obligations  are  Enforceable  in  Other  States. 
Such  contracts  and  obligations  as  these  latter,  that  are  dependent 
on  the  general  law  as  to  validity,  and  on  the  law  of  the  foruin. 
for  their  enforcement,  will  be  enforced,  however,  in  the  courts  of 
another  State,  although  they  originate  in  the  administration  of 
the  laws  of  a  State,  and  are  of  a  public  nature,  and  under  statu- 
tory provisions,  where  the  obligation  is  plain  and  direct,  and  is 

'  Pickeriug  b.  Fisk,  6  Vt.  103;  In-  «.  Pownal,  9  Vt.  411 ;  Story's  Conf.  of 
diana  e.  John,  5  Ham.  (Ohio)  218.  Laws,  g  625  a. 

*  Pickering  n.  Fisk,  6  Vt  102 ;  Hunt         » Ibid. 


STATUTORY  BONDS  IN  STATE  PROCEEDINGS.     OD 

left  for  its  operation,  enforcement,  and  effect,  to  rest  upon  the 
rales  of  the  common  law.i  But  when  they  are  to  have  effect 
only  in  a  particular  way,  and  are  enforceable  only  in  a  particular 
manner  pointed  out  by  the  statute  under  which  they  are  made, 
their  enforcement  is  exclusively  in  the  courts  of  the  State  in 
which  they  originate. ^  The  case  of  Pickering  v.  Fish,  above 
cited,  was  an  action,  in  the  court  of  Vermont,  upon  a  bond  exe- 
cuted by  the  sheriff  of  Grafton  county,  in  the  State  of  New 
Hampshire,  and  his  sureties.  The  bond  was  payable  to  the  State 
treasurer  and  his  successors  in  office,  conditioned  for  the  faithful 
discharge  of  the  duties  of  the  office  of  sheriff.  The  suit  was 
against  one  of  the  sureties,  not  in  the  name  of  the  State  treasurer 
of  New  Hampshire,  but  in  the  name  of  a  private  person,  as  per- 
mitted by  the  statute  of  New  Hampshire,  for  neglect  of  duty  in 
not  serving  and  returning  a  writ  of  execution,  and  loss  of  plain- 
tiff, incurred  by  such  neglect.  The  Supreme  Court  of  Yermont 
held  that  no  action  would  lie  on  such  bond  in  the  courts  of  that 
State,  at  the  suit  of  a  person,  as  the  New  Hampshire  statute  tol- 
erating such  proceeding  had  no  force  within  the  State  of  Yer- 
mont, and  could  not  be  administered  by  the  courts  of  the  latter 
State.  Remedies  are  administered  only  in  accordance  with  the 
law  of  the  forum. 

The  very  learned  Justice  Redfield,  in  discussing  a  kindred 
question  in  Diinick  v.  Brooks,^  expressed  grave  doubts  whether 
courts  of  one  State  can  give  effect  to  judgments  of  another  State 
by  the  enforcement  of  collateral  remedies  which  the  prevailing 
party  is  entitled  to  in  i\\e  forum  where  the  judgments  are  ren- 
dered, as  for  instance,  scire  facias,  or  debt  upon  recognizances, 
of  bail  on  mesne  process,  ajud  suits  against  receiptors  of  property, 
upon  replevin  bonds,  or  against  sheriffs  for  neglect  of  duty,  be- 
lieving them  all  to  be  confined  to  local  jurisdiction ;  as,  also,  prison 
bonds,  and  warrants  of  attorney  to  confess  judgment;  and  as- 
sumes it  to  be  ver\'  clearly  the  law  that  remedy  by  scire  facias 
to  enforce  any  such  collateral  remedy,  must  be  confined  to  the 
forum  of  the  record. 

Statutory  Obligations.  OflBeial  Bonds,  Continued.  Official  or 
statutory  bonds,  taken  in  one  State  under  and  by  virtue  of  a  stat- 

'  Pickering  v.  Fisl?,  6  Vt.  102 ;  Hunt  «  Ibid. 

V.  Pownal,  9  Vt.  411 ;  Story's  Conf.  of  »  21  Vt.  569,  579,  580. 

Laws,  §  625  a. 


5G         INTER-STATE  LAW  OF  CONTRACTS. 

ute  or  statutes  thereof,  and  enforceable  according  to  such  statute  or 
statutes,  are  not  enforceable  in  the  courts  of  other  States,  in  the 
peculiar  manner  and  for  the  purposes  prescribed  by  statute. ^  And 
not  being  given  except  for  these  peculiar  purposes,  and  being  en- 
forceable only  in  the  manner  prescribed  under  the  statute,  it  fol- 
lows therefrom  that,  in  other  States,  they  are  not  cntbrccable  at 
all;  for  the  proceeding  to  enforce  them,  though  judicial  in  char- 
acter, is  also  administrative,  as  part  of  the  machinery  of  State 
for  carrying  out  the  purposes  of  government  in  the  various  de- 
partments, and  is  essentially  local  to  the  tribunals  of  the  State 
wherein  they  originate,  as  no  State  undertakes  to  administer  the 
affairs,  or  enforce  the  laws  of  other  States  for  purposes  j)urely 
administrative.' 

Exceptions  to  the  Bvile.  But,  if  the  obligation  be  plain,  cer- 
tain and  direct,  and  in  accordance  with  tlie  principles  of  general 
law  prevailing  among  civilized  communities,  and  are  merely  de- 
pendent for  enforcement  on  the  law  of  i]x&  forum,  then,  although 
the  purpose  be  administrative,  they  will  be  enforced  in  another 
State,  though  of  a  public  nature  and  resting  upon  statute.^ 

Y.     Statctory  Bonds  in  Federal  Pkoceedings. 

Where  Payable.  Official  bonds  of  officers  of  the  United  States, 
executed  to  the  United  States,  conditioned  for  faithful  perform- 
ance of  official  duties,  and  delivered  to  the  proper  department  of 
the  government  at  Washington,  are,  in  contemplation  of  law, 
made  at  that  place,  although  executed,  except  as  to  delivery,  in 
one  of  the  States.  In  case  of  accountability,  under  such  bonds, 
payment  is  to  be  made  at  the  treasury.  The  bonds  are  entered 
into  in  reference  to  that  place,  under  the  laws  of  the  United 
States,  and  those  laws  and  the  rule  of  the  common  law  govern  as 
the  law  of  the  contract.* 

Where  a  collector's  bond  was  signed  by  himself  and  sureties, 
in  Florida,  and  mailed  to  the  proper  department  at  Washington 
for  approval  and  acceptance,  and  one  of  the  sureties  died  while 
the  bond  was  in  transit  between  Florida  and  Washington,  and 

'Indiana   ».  John,    5    Ham.   218;  »  Pickering  «.  Fisk,  6  Vt  102. 

Pickering  v.  Fisk,  6  Vt.  103.  *  Cox  v.  U.  S.,  6  Pet.  172,  20-4;  Dun- 

*  Pickering  t.  Fisk,  6  Vt.  102;  Mc-  can  v.  U.  S.,  7  Pet.  435;  U.  S.  o.  Ste- 

Fee  «.  South  Car.  Ins.  Co.,  2  AlcCord,  phenson,  1  McLean,  462. 
503. 


STATUTORY  BOXDS  IN  FEDERAL  PROCEEDINGS.   Oi 

before  its  a])proval  and  acceptance,  it  was  held  tliat  the  bond  was 
valid,  and  that  the  sureties  were  bound  thereby  J 

Taking  Effect  by  Relation.  Tliat  though  delivered  for  accept- 
ance and  approval,  or  placed  in  course  of  transit  for  that  purpose, 
and  though  the  contract  be  not  complete  till  approved  and  ac- 
cepted, yet  when  these  acts  are  performed  by  the  proper  govern- 
ment functionary  they  then  relate  back  to  the  date  of  the  bond, 
and  make  it  a  valid  bond  as  of  that  date,  and  therefore  the  surety 
who  had  died  in  the  interval  was  bound  thereby,  and  recovery 
was  allowed  and  sustained  against  his  administrator,  on  the 
bond.  3 

Rule  of  Relation  as  to  Bonds  of  Postmasters.  But  the  rule  of 
law  is  different  as  to  the  time  of  taking  elfect  of  a  bond  executed 
by  a  deputy  postmaster  to  the  postmaster-general.  The  latter 
takes  effect  when  it  is  received  by  the  postmaster-general  and  is 
by  him  accepted.  Until  then  it  is  merely  an  offer. ^  There  is  a 
difference  in  this  respect  between  bonds  of  a  postmaster  and  col- 
lectors' bonds.  Collectors  are  authorized  to  discharge  the  duties 
of  their  office  for  three  months  without  givino'  bond;  in  other 
words,  they  have  three  months  in  which  to  give  bond;  but  post- 
masters must  give  bonds,  with  approved  security,  on  their  ap- 
pointment. The  appointment  and  giving  bond  are  concurrent 
acts,  and  the  appointment,  without  bond  and  security  approved, 
does  not  in  itself  confer  power  to  act.  Hence,  the  date  and 
taking  effect  of  a  postmaster's  bond  bear  relation  to  the  date  of 
his  appointment;  whereas,  a  collector's  bond,  when  accepted  by 
official  approval,  relates  back  to  its  date,  so  as  to  cover  the  inter- 
val of  time  in  which  he  had  acted  officially  prior  to  its  approval.^ 

In  the  case  of  Le  Baron,  the  Supreme  Court  of  the  United 
States  say:  "It  is  like  the  case  of  Bruce  v.  The  State  of 
Maryland,^  where  it  was  held  that  the  bond  of  a  sheriff  took 
effect  only  when  approved  by  the  county  court;  because  it 
was  only  on  such  approval  that  the  sheriff  was  authorized  to 
act."« 

Attachment  Bonds.  On  an  attachment  bond  executed  to  the 
marshal  of  the  United  States,  in  a  proceeding  by  attachment  in 
the  United  States  Circuit  Court,  a  suit  lies,  in  the  same  court, 

'  Broome  v.  U.  S.,  15  How.  143.  *  Ibid. 

2  Ibid.  »  11  Gill  &  J.  383. 

^  U.  S.  V.  Le  Baron,  19  How.  73,  77.  « 19  How.  77. 


08  INTER-STATE    LAW    OF    CONTRACTS. 

in  behalf  of  the  marshal  as  plaintiff,  if  averred  to  be  for  the 
benefit  of  persons  citizens  of  a  different  State  than  that  of  the 
defendant,  although  the  marshal's  office  has  expired,  and  ho  has 
ceased  to  act  as  such  officer.  The  real  plaintiffs  are  those  for 
whose  use  the  suit  is  brought.  * 

VI.     Rule  of  Damages  on  Intek-State  Obligations. 

The  measure  and  rule  of  damages  to  be  awarded  for  the  breach 
or  non-performance  of  contracts  made  in  one  State,  and  expressed 
to  be  performable  or  payable  in  another  State,  it  has  been  held, 
are  the  law  of  the  State  wherein  the  contract  is  made.  The  lex 
loci  contractus  governs  in  that  respect,  for  the  matter  is  matter 
of  right,  appertaining  to  the  obligation  of  the  contract,  and  not 
of  remedy  in  reference  to  the  manner,  merely,  of  enforcing  it.^ 
But  in  cases  of  promissory  notes  made  payable  in  a  State  other 
than  where  made,  the  rule  of  damages  in  case  of  a  breach,  it 
would  seem,  would  be  that  of  the  place  of  performance.'  In 
cases  of  tort,  the  rule  of  damages  is  always  enforced  under  the 
measure  of  the  lex  forl^  as  will  be  seen  hereafter. 

VII.     Contracts  Made  with  a  View  to  Violation  of  Law  of 
Another  State. 

Void  Contracts.  Contracts  entered  into  in  one  State,  with  a 
view  to,  or  in  contemplation  of,  the  violation  of  the  laws  of  an- 
other State,  or  with  intent  to  enable  a  party  to  violate  the  same, 
are  not  enforceable  in  the  courts  of  the  latter,  although  legal  in 
the  State,  or  by  the  laws  thereof,  where  made.* 

Knowledge  Alone  not  SuflBcient.  There  Must  be  Illegal  Intent. 
A  mere  knowledge,  of  a  party  to  a  contract,  that  the  otber  party 
thereto  intends  to  use  an  article  contracted  for  by  selling  the  same 
in  another  State,  in  violation  of  the  laws  thereof,  will  not  in 
itself  avoid  the  contract,  or  prevent  a  recovery  thereon  in  such 

>  Huff  r.  Hutchinson,  14  How.  58G.  2U;   Scofield  v.  Day,  30  John.  102; 

»  Jaffray  v.  Dennis,  3  Wash.  C.  C.  Archer  v.  Dunn,  2  W.  &  S.  327. 

253 ;  Consequa  v.  Willings,  Pet  C.  C.  •*  Davis  v  Bronson,  6  Iowa,  410, 433 ; 

225;  "Willingsc.  Conscqua,  Ibid.  302.  Armstrong  v.  Toler,  11  "Wheat.  258; 

«  Story's  Conf.  of  Ltiws,  §§  304  6,  Bliss  v.  Brainard,  41  N.  H.  256;  Phin- 

307  a.;  Foote's  Private  International  ney  v.  Baldwin,  10  111.  108;  Common- 

Law,  351  et  seq.;  Field  on  Damages,  §  wealth  v.  Aves,  18  Pick.  193. 


CONTEACTS    VIOLATING    LAW    OF    ANOTHER    STATE.    59 

other  State;  there  must  be  some  sort  of  mutuality  in  the  evil  or 
wrong  intent,  or  some  purpose  of  aiding  therein. ^ 

Purchase  Made  in  One  State  by  Order  from  Another  State. 
A  purchase  made  by  order  from  one  State,  of  a  person  in  an- 
other State,  there  sending  or  forwarding  the  article  bought,  to 
the  buyer,  is  regarded  in  law  as  a  transaction  in  the  State  where 
the  vendor  resided,  or  from  wherein  he  forwards  the  article,  and 
depends  for  validity  upon  the  law  thereof  ^ 

Conti'acts  of  Common  Carrier?.  The  contracts  of  a  common 
carrier  to  carry  property  from  a  point  in  one  State  to  a  point  in 
another,  over  a  route  lying  partly  in  each  of  said  States,  is  gov- 
erned as  to  its  validity  and  interpretation  by  the  law  of  the  place 
where  the  contract  is  made  and  the  property  to  be  carried  is  re- 
ceived. ^  Thus,  where  a  railroad  company  undertook  to  carry 
property  from  Clinton,  in  Iowa,  to  Chicago,  in  Illinois,  over  its 
road  between  those  places,  and  stipulated  for  a  restriction  from 
the  ordinary  liability  of  common  carrier,  in  contravention  of  a 
statute  law  of  Iowa  inhibiting  such  restriction,  it  was  held  that 
the  contract,  being  partly  performable  in  each  State,  was  to  be  gov- 
erned as  to  validity  by  the  laws  of  Iowa,  and  that,  by  reason  of 
such  illegal  restriction,  it  was  void;  and  that,  therefore,  the  or- 
dinary liability  attached  to  the  carrier."*  So,  as  in  Talbott  v. 
Tlie  Merchants''  Dispatch  Transportation  Company,  above  cited, 
where  a  contract  of  transportation  was  made  in  Connecticut,  for 
the  carriage  of  property  there  received  to  Des  Moines,  Iowa,  in 
which  contract  there  was  a  stipulation  in  favor  of  the  carrier, 
against  loss  by  fire,  and  under  which  contract  the  property  was 
received  and  transported  as  far  as  Chicago,  in  Illinois,  and  was 
there  destroyed  by  fire,  without  fault  of  the  carrier,  and  the  laws 
both  of  Connecticut  and  Illinois  tolerated  such  exemption  in 
carriers'  contracts,  it  was  held  that  the  carrier  was  exempt  from 
liability,  although  the  laws  of  Iowa,  where  the  action  was  tried, 

'  Johnson  «.  Gregory's  Exrs.,  4  Met.  man,  33  Iowa,  194;  Bootliby  v.  Plais- 

(Ky.)  363 ;  Mclntyre  v.  Parks,  3  Met.  ted,  51  N.  H.  436. 

(Mass.)  207;  Boothby  v.  Plaisted,  51  »  McDaniel  v.  Chicago  &  N.  W.  R. 

K   H.  436;    Tegler  v.  Shipman,   33  R  Co.,  24  Iowa,  412;  Talbott  «.  Mer- 

Iowa,  194;  Hill  ».  Spear,  50  N.  H.  chants' Dispatch  Trans.  Co.,  41  Iowa, 

253.  247. 

2  Holman  v.  Johnson,  Cowper,  341 ;  <  McDaniel  v.  Chi.  &  N.  W.  R  R 

Sortwell  V.  Hughes,  1  Curtis,  244 ;  Hill  Co.,  24  Iowa,  412. 
V.  Spear,  50  N.  H.  253 ;  Tegler  v.  Ship. 


60  INTER-STATE    LAW    OF    CONTRACTS. 

and  the  property  was  to  have  been  delivered  hy  the  carrier,  pro- 
hibits sucli  contracts  and  renders  the  same  invalid;  such  prohibi- 
tion and  invalidity  under  the  Iowa  law  has  no  extra-territorial 
force  to  invalidate  a  contract  made  elsewhere,  in  case  of  loss  sus- 
tained in  a  State  where  sucli  exemption  was  allowed  by  law.* 

VIII.     Statute  of  Frauds. 

Tlie  Statute  of  Frauds  is  of  the  lex  loci  contractus^  and  there- 
fore, if  a  contract  made  in  one  State  be  sued  on  or  brought  in 
question  in  the  courts  of  another  State,  a  j>arty  relying  on  the 
Statute  of  Frauds  must  rely  upon  the  statute  of  the  State  where 
the  contract  was  made,^  and  must  plead  and  prove  the  same,  with 
averments  and  proof  also,  if  not  otherwise  admitted  by  tlie  plead- 
ings, of  the  place  of  the  alleged  making  of  the  contract.'  And 
when  proven,  the  statute  is  not  enforced,  strictly  speaking,  as  a 
law,  but  as  entering  into,  and  forming  a  part  of,  the  contract.  If 
the  contract  is  not  subject  to  the  Statute  of  Frauds  where  made, 
but  by  the  statute  of  the  State  where  performable,  the  contract 
is  void,  yet  it  will  be  held  valid,  and  will  be  construed  by  the  lex 
loci  contractus.^ 

IX.     Commercial  Paper  and  Endorsements. 

Law  of  Place  of  Payments  Governs.  Notes  and  other  commer- 
cial paper,  for  payment  of  money,  made  in  one  State  and  payable 
in  another,  are  payable,  and  carry  a  liability  to  payment,  accord- 
ing to  the  law  of  the  place  M'here  payable.  ^ 

Law  of  Place  of  Endorsement  Governs ;  Fixes  the  Liability  of 
the  Endorser.    But  an  endorsement  thereof  is  governed  by  the 

'  Talbott   V.  Merchants'  Dispatch  838;   Carrigan  t>.  Brent,  1  McLean, 

Trans.  Co.,  41  Iowa,  247.  167. 

*  Denny  v.  Williams.  5  Allen,  1;  »  Hunt??.  Standart,  15  Ind.  33;  An- 
Forvvard  v.  Harris,  30  Barb.  338 ;  Low  drews  v.  Pond,  13  Pet.  65 ;  Freese  v. 
v.  Andrews,  1  Story,  38;  Allshouse  v.  Brownell,  35  N.  J.  285;  Edwards  on 
Ramsay,  6  Whart.  331;  Scudder  v.  Bills,  178;  Daniels  on  Neg.  Instru- 
Union  Nat.  Bank,  1  Otto,  406 ;  Robb  ments,  §  879  el  seq.  So  the  number 
«.  Halsey,  11  Sm.  &  M.  140.  of  days  of  grace  allowed  is  governed 

*  Forward  v.  Harris,  30  Barb.  338.  by  the  law  of  the  place  where  the 

*  Scudder  v.  Union  Nat.  Bank,  1  note  is  payable.  Story's  Conf.  of 
Otto,  400 ;  Forward  v.  Harris,  80  Barb.  Laws,  §  361. 


COMMERCIAL    PAPER    AND    ENDORSEMENTS.  61 

law  where  the  endorsement  is  macle;i  for  it  is  not  an  under- 
taking to  pay  at -any  particular  place.  ^ 

Contracts  of  Maker  and  Endorser  Distinct.  The  endorser  will 
not  be  held  to  have  accepted  the  place  where  the  note  is  payable. 
He  makes  a  new  contract ;  and  that  contract  is  governed  by  the 
lex  loci  contractus. 

The  liability  of  an  endorser,  of  a  bill  or  note  drawn  in  one 
State  and  payable  in  another,  rests  npon  the  law  of  the  State 
wherein  the  endorsement  is  made.  The  contract  of  endorsement 
is  distinct  in  itself,  and  is  an  assumption  to  pay  upon  such  con- 
ditions as  attend  such  an  act,  by  the  law  of  the  State  where  the 
act  is  done.  The  construction  thereof,  and  of  the  diligence  to  be 
used  by  a  plaintiff  to  entitle  him  to  i*ecover  against  the  endorser, 
must  therefore  be  governed  by  the  laws  of  the  State  where  the 
contract  of  endorsement  is  made,  for  it  is  a  contract  to  pay,  if 
liable  at  all,  where  the  endorsement  is  made.^ 

It  may  therefore  be  regarded  as  settled  that  a  contract  of  en- 
dorsement of  negotiable  paper  is  subject  to  tlie  law  of  the  place 
where  the  endorsement  is  made  and  completed,  without  regard  to 
the  place  of  payment  or  place  of  making  of  the  note  itself;  for 
the  contracts  of  maker  and  of  endorser  are  separate  and  distinct. 
The  endorser's  liability  is  conditional,  and,  as  to  time  or  place  of 
payment,  is  general;  therefore  a  note  may  be  payable  at  a  par- 
ticular time  and  place,  but  an  ordinary  endorsement  thereof  is 
not  an  undertaking  to  pay  at  such  time  or  such  place,  |jut  is  an 
undertaking  to  pay  generally  wherever  called  on,  if  the  note  be 
not  paid  by  the  maker,  and  he,  the  endorser,  be  duly  notified 
thereof.^ 

The  endorsement  is  a  distinct  contract  from  that  ot  makinsr 


'  Shaw  «.Woocl,  8  Incl.  518;  Rosew.  357;  National  Bank  of' Michigan  v. 

Thames  Bank,  15  lud.  292;  Hntchens  Green,  33  Iowa,  140;  Trabue  v.  Short, 

■y.  Hanna,  8  Ind.  533 ;  Trabue  v.  Short,  18  La.  Ann.  257 ;  Hunt  v.  Standart,  15 

5  Cold.  293 ;  Dow  v.  Rowell,  12  N.  H.  Ind.  35 ;  Holbrook  v.  Vibbard,  2  Scam. 

49;  Dundas  v.  Bowler,  3  McL.  400;  465;  Musson  v.  Lake,  4  How.  262. 

National  Bank  of  Michigan  v.  Green,  *  Short  v.  Trabue,  4  Met.  (Ky )  299 ; 

33  Iowa,  140 ;  Daniels  on  Neg.  Instru-  Holbrook  v.  Vibbard,  2  Scam.  405 ; 

ments,  §  899.  Hunt  v.  Standart,  15  Ind.  33 ;  Lowrey 

2  Rose  ^).  Thames  Bank,  15  Ind.  292.  ■».  Western  Bank  of  Georgia,  7  Ala. 

See,  also,  cases  cited  in  the  preceding  120 ;   Hatcher  v.  McMorine,  4  Dev. 

note.  122;    Shaw   v.  Wood,   8    Ind.    518; 

»  Chatham  Bank  v.  Allison,  15  Iowa,  Hutchens  v.  Hanna,  8  Ind.  533. 


62  INTER-STATE    LAW    OF    CONTRACTS. 

the  paper  itself,  and  is  governed,  as  to  its  validity,  legal  effect, 
and  liability  of  the  endorser,  by  the  law  of  the  -place  where  the 
endorsement  is  made,  and  not  where  the  instrument  itself  was 
made  or  is  payable.^ 

Delivery.  But  the  contract  of  endorsement  is  not,  in  law, 
always  made  at  the  place  where  the  endorsement  is  written  upon 
tlie  bill  or  note.  The  true  rule  is,  that  the  contract  is  completed 
only  by  the  delivery  of  the  instrument.  So  that  the  endorsement 
must  not  only  be  written,  but  must  be  delivered,  in  order  to  bind 
the  endorser;  hence,  as  was  held  in  the  case  above  cited,  of  The 
Cliathain  Bank  v.  Allison^  where  an  endorsement  is  made  in  one 
State  and  then  the  bill,  and  endorsement  on  it,  is  sent  by  the  en- 
dorser to  a  bank  in  a  different  State,  to  be  collected  or  negotiated, 
and,  after  acceptance  by  the  payee,  the  bank  discounts  the  bill,  the 
contract  of  endorsement  only  became  complete  as  between  the 
endorser  and  the  bank,  when  the  latter  discounted  the  same,  and 
thereby  became  the  holder  of  it  as  for  the  benefit  of  the  bank. 
In  such  a  case  the  contract  of  endorsement  is  not  to  be  under- 
stood as  made  where  the  bill  is  drawn  and  the  name  of  the  en- 
dorser written  thereon,  unless  there  delivered  to  the  endorsee,  but 
rather  where  the  endorsement  is  accepted  by  a  consenting  en- 
dorsee, who  takes  the  same  on  faith  of  sucli  endorsement. ^ 

The  Place  of  Making  not  the  Place  of  Delivery.  But,  although 
the  liability  of  an  endorser  of  commercial  paper  is  governed  by 
the  lex  loci  contractiis^  or  law  of  the  place  where  the  endorse- 
ment is  made,  yet  the  endorsement  is  not  comjilete  until  delivery 
thereof,  and  also  of  the  note  or  paper  itself  to  those  to  whom  it 
is  intended  to  become  obligatory.  Therefore,  the  place  of  making 
the  endorsement  is  that  at  which  the  delivery  of  the  note  and 
endorsement  occurs,  so  that  if  a  note  be  written  in  one  State, 
and  an  endorsement  be  there  written  thereon,  and  it  remains  in 
the  hands  of  the  maker,  and  delivery  to  the  payee  afterward 
takes  place  in  another  State,  the  latter  State  is  the  place  where 
the  instruments  are  made,  as  the  contracts  of  maker  and  endorser 
are  only  completed  by  delivery.     In  such  case,  the  l^  loci  of 

'  Chatham  Bank t).  Allison,  15  Iowa,  857 ;  Freese  v.  Brownell,  35  N.  J.  Law, 

857;  National  Bank  of  Michigan  v.  286;   Campbell  v.  Nichols,  33  N.J. 

Green,  33  Iowa,  140 ;  Thorp  v.  Craig,  Law,  81 ;    Daniels   on   Neg.  Instru- 

10  Iowa,  461.  ments,  §  868. 

*  Chatham  Bank  v.  Allison,  15  Iowa, 


COMMERCIAL    PAPER    AND    ENDORSEMENTS.  63 

the  place  of  delivery  becomes  the  law  of  the  contract,  as  well  in 
regard  to  the  principal  instrument  as  to  the  endorsement,  and 
the  validity  and  obligation  of  both  are  governed  thereby. ^  Such 
being  the  law,  it  follows  that,  if  by  the  law  of  the  place  of  de- 
livery an  endorser  becomes  a  joint  promiser,  he  is  liable  as  such 
without  demand  or  notice. 2 

A  draft  drawn  on  a  person  of  another  State  than  wdiere  drawn, 
and  by  the  drawee  accepted,  and  then  returned  to  the  drawer  to 
be  there  negotiated  for  his  benefit,  as  an  accommodation  accept- 
ance, with  an  understanding  as  between  the  drawer  and  acceptor 
that  the  drawer  should  pay  the  same,  is,  until  negotiated,  not  a 
binding  contract.  The  drawer  is  substantially  the  agent  of  the 
acceptor,  to  put  the  same  upon  the  market  and  realize  for  his, 
the  drawer's,  benefit,  the  proceeds  thereof.  When  it  falls  into 
the  hands  of  a  hona  fide  holder  at  the  place  where  drawn,  it  be- 
comes a  perfected  contract,  and  not  until  then.  It  is  therefore  to 
be  considered,  both  as  to  the  drawing  and  acceptance  thereof,  as  a 
contract  made  in  the  State  wherein  it  is  drawn,  and  is  to  be  gov- 
erned, as  to  its  validity  and  meaning,  by  the  laws  of  such  State, 
notwithstanding  the  acceptance  is  written  in  a  difierent  place 
and  State.  3  If,  by  the  laws  of  the  State  where  the  draft  is  thus 
drawn  and  negotiated^  the  transaction  is  valid,  an  innocent  holder 
may  recover  thereon. *  And  though  such  draft  be  made  payable 
in  a  different  State  merely  to  give  it  currency  as  between  drawer 
and  acceptor,  but  in  reality  intended  to  be  paid  where  made,  and 
though  it  calls  for  a  greater  rate  of  interest  than  is  allowable  at 
such  designated  place  of  payment,  yet  if  such  rate  be  allowable 
by  the  law  of  the  place  of  the  contract,  it  may  there  be 
enforced,  s 

Acceptor.  The  same  law  which  governs  the  maker  of  a  note 
governs  the  acceptor.  By  acceptance  he  becomes,  in  fact,  a  j^rom- 
isor,  and  the  draft  thus  accepted,  his  promissory  note.  If,  there- 
fore, the  draft  be  payable  at  a  particular  place,  by  his  acceptance 
he  subjects  himself  to  the  law  of  the  place  of  performance.  ^ 

Notice  of  Dishonor.  Thus,  the  law  of  the  place  where  the 
endorsements  are  made,  being  the  law  of  the  contract  of  endorse- 

'  Lawrence  «.  Bassett,  5  Allen,  140.         *  Ibid. 

^  Ibid.  .  « Freese  v.  Brownell,  35  K  J.  Law, 

s  Tilden  «.  Blair,  21  Wall.  341.  286 ;  Everett  v.  Vendryes,  19  N.  Y.  436 ; 

*  Ibid.  Daniel  on  Neg.  Instruments,  §  896. 


64  INTER-STATE    LAW    OF    CONTRACTS. 

raents,  therefore,  if  nothing  appear  to  the  contrary,  such  law 
governs  as  to  the  liability  of  the  endorsers, i  it  follows,  that  where 
a  party  endorses  in  one  State  commercial  paper  which  is  payable 
in  another  State,  notice  of  dishonor  must  be  in  accordance  with 
the  law  of  the  State  where  the  paper  was  endorsed.' 

Protest.  The  law  governing  protest  is  regulated  by  the  law  of 
the  place  of  the  performance  or  acceptance.  If,  therefore,  the 
drawee  refuses  acceptance,  the  law  of  the  place  where  such  refusal 
is  made  governs.' 

Notice.  Change  of  Residence  of  Maker.  Ko  notice  or  pre- 
sentation for  payment  is  necessary  to  charge  the  endorser  of  ne- 
gotiable paper  generally,  if  before  maturity  the  maker  changes 
his  residence  to  another  State,  and  there  resides  when  the  paper 
becomes  due.  Presentation  and  demand  in  such  case  at  the 
maker's  late  residence  would  be  unavailing,  and  are  therefore  not 
required.* 

Rate  of  Interest.  In  an  action  on  a  promissory  note,  or  other 
contract  for  the  payment  of  money,  the  action  being  in  the  court 
of  a  different  State  than  that  wherein  the  contract  was  made,  and 
the  contract  being  payable  generally,  without  specifying  a  place 
of  payment  or  rate  of  interest,  then  interest  is  to  be  allowed 
according  to  the  law  where  the  contract  was  made,  if  the  place 
of  payment  be  apparent  from  the  instrument,  or  pleadings  and 
evidence,  and  is  in  a  different  State  than  the  State  in  which  suit 
and  recovery  occurs.  ^ 

If,  on  the  other  hand,  the  instrument  sued  on  is  payable  in 
the  State  where  the  suit  is  pending,  or  in  some  other  State 
than  that  wherein  it  was  made,  and  is  silent  as  to  the  rate  of 
interest,  then  interest  is  to  be  allowed  in  accordance  with  the  law 

»Huse  V.  Hamblin;   Same  v.  Mc  » Story's  Conf.  of  Laws,  §§   360, 

Daniel;  Same  b.  Flint,  29  Iowa,  501;  631. 

Thorp  V.  Craig,  10  Iowa,  461.  *  Foster  v.  Julien,  24  N.  Y.  28;  An- 

'Huse  V.  Hamblin,  29  Iowa,  501,  derson  ©.Drake.  14  John.  114;  Mc- 

504;  Williams  v.  Wade,  1  Met.  82;  Gruder   v.  Bank  of  Washington,  9 

Dow  V.  Rowell,  12  N.  H.  49 ;  Allen  v.  Wheat.  598 ;  Gist  v.  Lybrand,  3  Ohio. 

Merchants' Bank,  22  Wend.  218;  Yeat-  307;  Duncan  c.  McCullough,  4  S.  «fc 

man  v.  Cullen,5  Blackf.  240;  DunntJ.  R.  480;  Reid  v.  Morrison,  2  W.  &  S. 

Adams,  1  Ala.  527 ;  Russell  t.  Buck,  401 ;  Gillespie  v.  Hannahan,  4  Mc- 

14  Vt.  147 ;   Aymar  v.    Sheldon,  12  Cord,  503. 

Wend.  444;  Daniels  on  Neg.  Instru-  *  Smith  v.  Smith,  2  John.  235. 
ments,  §  910. 


COMMERCIAL    PAPER    Al^D    ENDORSEMENTS.  65 

of  the  State  wherein  it  purports  to  be  payable;  and  this,  too,  if 
made  in  the  place  or  State  where  suit  is  brought,  but  is  payable 
in  some  other  State;  for,  as  a  general  rule, be  the  suit  and  recovery 
wherever  it  may,  the  rate  of  interest  is  to  be  computed  in  accord- 
ance with  the  legal  rate  where  it  is  payable,  if  made  in  one  State 
and  payable  in  another. ^  But  the  parties  may  agree  at  pleasure 
by  stipulating  in  the  contract,  for  the  rate  of  interest  in  the 
place  where  it  is  made,  or  where  performable.^ 

Usurious  Contract.  If  both  by  the  law  of  the  State  where  the 
instrument  is  made  and  the  law  of  the  State  wherein  payment  is 
to  be  made,  the  contract  be  usurious,  then  the  eifect  of  such  usu- 
riousness  is  to  be  decided  by  the  law  of  the  place  of  the  making 
thereof.3  If  a  contract  is  usurious  where  made,  but  valid  where 
performable,  the  latter  law  governs.*  So,  also,  if  the  contract  is 
good  where  made  it  will  be  enforced  by  the  courts  of  another 
State,  even  though  the  contract  would  have  been  usurious  had 
it  been  there  entered  into.^  If  the  effect  be  o.  forfeiture  by  the 
statute,  yet  the  forfeiture  is  enforceable  in  the  forum  where  suit 
is  brought,  notwithstanding  the  doctrine  that  courts  will  not 
enforce  penal  statutes  of  a  different  or  foreign  State;  for  such 
provision  of  forfeiture  is  not  a  provision  for  a  penalty,  but 
merely  resists  so  much  of  the  validity  of  the  contracts,  and  acts 
only  as  a  restriction  of  the  amount  recoverable,  and  in  that 
respect  is  rightly  referable  to  the  law  of  the  place  where  the  con- 
tract is  made.^ 

In  actions  in  the  United  States  circuit  courts,  sitting  in  any 

1  Butters  ».  Olds,  11  Iowa,  1 ;  De  «.  Camp,  13  Wis.  198,  221 ;  Daniels  on 

"VVolf  '0.   Johnson,    10   Wheat.  367 ;  Neg.  Instruments,  §  922. 

Campbell  «.  Nichols,  33  N.  J.  Law,  ^  Arnold  «.  Potter,  22  Iowa,  194. 

81.    But  if  the  interest  is  adjudged  *  Junction  Railroad  Co.  ».  Ashland 

by  the  court  merely  as  damages,  and  Bank,  12  Wall.  -226;  Duncan  «.  Helm, 

not  as  interest  under  the  contract,  the  22  La.  Ann.  418 ;  Miller  «?.  Tiffany,  1 

rate  will  be  governed  by  the  lex,  fori.  Wall.  298;    Kennedy  v.  Knight,  21 

Ayres  v.  Audubon,  2  Hill,  (S.  C.)  601.  Wis.  340. 

"Butters®. Olds,  11  Iowa,  1;  Arnold  ^Levy  t.  Levy,  78  Penn.  St.  507; 

'D.  Potter,  22    Iowa,  194;    Smith    v.  Phila.  Loan  Co.  v.  Towner,  13  Conn. 

Smith,  2    John.  2.36;    Thompson   «.  249 ;  De  Wolf  c.  Johnson,  10  Wheat, 

Ketcham,  4  John.  285;  Cox  v.  United  367. 

States,  6  Pet.  172;  Peck  «.  Mayo,  14  'Arnold  t).  Potter,    22    Iowa,  94; 

Yt.  33 ;  Parsons'  Mer.  Law,  321 ;  Rich-  Barnes  v.  Whitaker,  23  111.  606 ;  Smith 

ards  v.  Globe  Bank,  12  Wis.  (392 ;  New-  v.  Mead,  3  Conn.  253. 
man  ■».  Kersham,  10  Wis.  333 ;  Vliet 

5 


GO  INTER-STATE    LAW    OF    CONTRACTS. 

State,  the  laws  of  sucli  State  regulating  interest  on  judgments 
are  in  that  respect  the  law  of  the  United  States  courts,  if  no  par- 
ticular interest  be  contracted  for.* 

Defenses.  To  an  action  on  a  note  which  is  both  made  and  pay- 
able in  one  and  the  same  State,  the  same  defense  (provided  it  is 
not  statutory)  is  allowable,  when  sued  in  another  State,  that 
might  have  been  made  to  it  if  sued  in  a  court  of  the  State  where 
made.  2 

Thus,  where  a  note  is  made  and  is  payable  in  a  State  where  by 
law  defenses  of  payments,  want  of  consideration,  discounts,  and 
sets-off  accruing  prior  to  notice  of  endorsement,  and  all  of  which 
affect  the  substance  of  the  contract,  are  allowed,  then  the  same 
defenses  may  be  relied  on  nnder  similar  circumstances  in  a  suit 
in  the  court  of  a  different  State, ^  but  matters  of  defense  which 
are  merely  local,  which  go  to  the  form  of  the  contract  and  are  not 
a  part  of  it,  procedure,  parties  and  time,  being  legal  as  well  as 
equitable,  defenses  are  governed  by  the  lex  foriA 

Foreign  Bills  of  Exchange  Subject  to  Jurisdiction  of  United 
States  Courts.  The  provision  of  the  act  of  Congress  of  17S9, 
which  declares  that  no  district  or  circuit  court  shall  have  "coif- 
nizance  of  any  suit  for  the  recovery  of  the  contents  of  any  prom- 
issory note  or  other  chose  in  action  in  favor  of  an  assignee,  unless 
a  suit  might  have  been  prosecuted  in  such  court  to  recover  said 
contents,  if  no  assignment  had  been  made,  except  in  case  of  for- 
eign bills  of  exchange,"^  does  not  in  its  restrictive  or  inhibitory 
features  apply  to  the  endorsees  or  assignees  of  bills  of  exchange 
drawn  in  one  State  upon  a  person  in  another,  and  made  ])ayable 
in  such  latter  State,  Such  bills  of  exchange  partake  of  the  char- 
acter of  foreign  bills,  and  are  to  be  so  treated ;«  for  although  the 
States  and  citizens  thereof  are  one,  as  for  all  national  purjjoses 
embraced  in  the  Federal  Constitution,  and  are  united  under  the 
same  sovereign  authority,  and  are  governed  by  the  same  laws, 
yet  in  all  other  respects  the  States  are  foreign  to  and  independent 
of  each  otlier.'     Upon  the  principle,  then,  that  such  instruments 

'  Sneed  v.  Wister,  8  Wheat.  690.  Jones  v.  Jones,  18  Ala.  248;  Ruggles 

» Brabston  v.  Gibson,  9  How.  263 ;  c.  Keeler.  3  John.  261. 

Story's  Conf.  of  Laws,  §  330  et  aeq.  *  Sheldon  v.  Sill,  8  How.  441. 

« Ibid.  '  Buckner  e.  Fin  ley,  2  Pet.  586. 

<  Daniels  on  Neg.  Instruments,  §  'Warder  v.  Arell,  2  Wash.  (Va.) 

890;  Davis  v.  Morton,  5  Bush,  160;  298;  Buckner  e.  Finley,  2  Pet.  586. 


COMMERCIAL    PAPER    AND    ENDORSEMENTS.  67 

are  foreio-n  bills,  it  results  that  altbouirli  a  bill  be  drawn  in  favor 
of  a  citizen  of  the  same  State  with  the  drawer,  but  on  a  citizen 
of  another  State,  so  that  suit  would  not  lie  in  favor  of  the  payee 
in  the  United  States  circuit  court,  yet  the  endorsee  or  assignee 
thereof,  who  is  a  citizen  of  a  different  State  than  that  of  the 
drawer,  may  sue  tlie  drawer  thereon  in  the  Federal  courts.  ^ 

But  if  at  the  time  of  making  the  note  or  other  negotiable 
instrument  for  payment  of  money,  (except  foreign  bills  of  ex- 
change,) the  maker  and  payee  were  both  citizens  of  the  same 
State,  so  that  a  suit  would  not  lie  thereon  in  the  United  States 
court,  then  no  action  will  lie  on  such  instrument  in  said  court  in 
favor  of  an  assignee  or  endorsee  thereof, ^  unless  at  the  time  of 
making  the  assignment  or  endorsement  by  the  payee,  he  had 
become,  and  then  was  in  good  faith  a  resident  and  citizen  of  a 
different  State  than  the  one  of  which  the  parties  were  citizens  at 
the  time  of  the  making  of  the  contract.  But  if  the  payee,  be- 
fore parting  with  the  instrument  has  become  qualified  to  sue  in 
the  Federal  court,  then  his  assignee,  if  qualified  in  point  of  citi- 
zenship, may  sue,  for  the  assignee  of  negotiable  paper  may  main- 
tain suit  thereon  in  the  United  States  circuit  court,  against  a 
citizen  of  another  State  than  that  whereof  such  assignee  is  a  cit- 
izen, notwithstanding  that  at  the  time  of  making  the  note  the 
parties  thereto  were  both  citizens  of  the  same  State,  if  the  payee 
and  assignee  thereof  was  a  citizen  of  a  different  State  from  that 
of  the  maker  at  the  time  of  assigning  the  note,  so  that  an  action 
in  said  court  might  at  that  time  have  been  maintained  by  him- 
self against  the  maker.  For  if  such  payee  becomes  in  good  faith 
a  citizen  of  another  State  after  the  making  of  the  note  and  be- 
fore parting  with  the  same,  then  the  capacity  to  sue  in  the  United 
States  district  court  inures  to  him,  by  virtue  of  such  citizen- 
ship, and  by  an  assignment  of  the  note  to  a  citizen  of  a  different 
State  from  that  of  the  debtor,  the  same  right  of  action  passes  to 
the  assignee.  Such  a  case  is  not  within  the  exception  in  the  act 
of  Congress  in  regard  to  jurisdiction  of  suits  by  assignees  of 
promissorv  notes.  ^ 

'  Buckner  v.  Finley,  2  Pet.  586.  «  Kirkman  v.  Hamilton,  8  Pet.  20. 

^  Gibson  v.  Chew,  16  Pet.  315. 


68  INTER-STATE    LAW    OF    CONTRACTS. 


X.    Mortgage  Lien. 

Follows  the  property  in  other  States.  A  chattel  mortgage  of 
property  duly  executed  and  recorded  in  one  State,  bo  as  to  confer 
right  of  possession  of  the  property  in  the  mortgagee,  is  equally 
good  and  binding  in  every  other  State  in  which  the  property  may 
come.  The  lex  loci  conti^actus  governs  the  validity,  nature  and 
force  of  such  a  contract,  and  the  right  of  possession  or  lien  con- 
ferred thereby  upon  the  mortgagee  follows  the  property  not  only 
everywhere  within,  but  also  everywhere  without  the  particular 
sovereignty  or  State  wherein  the  contract  is  made  and  the  prop- 
erty is  at  the  time;  and  these  rights  will  be  enforced,  in  the  judi- 
cial yb^'wm,  in  such  other  jurisdictions  or  States,  to  the  same  ex- 
tent and  obligation  as  in  the  State  where  the  transaction  arises, 
and  that  a  purchase  may  have  intervened  from  one  seemingly  the 
owner  does  not  alter  the  case.^ 

Right  of  possession  enforced.  When,  by  the  terms  of  such 
mortgage,  the  right  has  accrued  to  the  mortgagee  of  actual  pos- 
sion  of  the  property,  that  right  may  be  enforced  by  an  action  of 
replevin  or  other  proper  action  for  obtaining  possession,  in  what- 
ever State  the  mortgaged  property  may  then  be;  and  it  is  no 
answer  thereto  that  no  evidence  or  notice  existed  of  record,  or 
was  otherwise  given,  to  charge  a  purchaser  therein  with  notice  of 
the  mortgage.2  But  the  court  say,  in  the  case  above  cited,  in 
answer  to  such  an  objection,  and  the  liability  of  buyers  to  be  im- 
posed upon,  that "  this  may  be  so,  but  the  same  argument  would 
be  just  as  true  and  forcible  if  the  instrument  were  of  record  in 
some  distant  county  of  this  State."  ^ 

A  mortgage  of  a  vessel  regularly  made  and  recorded  under  the 
laws  of  the  United  States,  in  the  office  of  the  proper  collector, 
although  possession  be  not  given  to  the  mortgagee,  is  not  affected 
as  to  its  validity  by  any  State  law  in  reference  to  the  filing  or  re- 
cordjng  mortgages  of  personal  property  made  or  taken  under  the 

'  Smith  t).  McLean,  24  Iowa,  322 ;  Blystone  v.  Burgett,  10  Ind.  28 ;  Bar- 
Arnold  V.  Potter,  22  Iowa,  198;  Sava-  ker  v.  Stacy,  25  Miss.  477;  Ryan  v. 
ry«.  Savary,3I/)wa,272;BankofU.S.  Clanton,  8  Strob.  412,  471;  Herman 
V.  Donnally,  8  Pet.  361 ;  Davis  v.  Bron-  on  Chattel  Mortgages,  §§  70,  80. 
^n,  6  Iowa,  410, 424;  Jones  b.  Taylor,  *  Smith  v.  McLean,  24  Iowa,  822, 
30  Vt.  42;  Offutt  v.  Flagg,  10  N.  H.  330.  331. 
50 ;  Ferguson  v.  Cliflford,  87  N.  H.  87 ;  » Ibid. 


MOETGAGE    LIEN.  69 

laws  of  the  State.  The  congressional  acts  on  the  subject  of  record- 
ing and  effect  thereof  are  no  exclusion  of  State  legislation  on  the 
same  subject.  ^ 

Mortgage  in  one  State;  property  in  another  State.  But  the 
lien  of  a  mortgage  made  in  one  State  bj  a  person  resident  and 
citizen  thereof,  on  personal  property  situated  at  the  time  in  an- 
otlier  State,  in  which  latter  State  the  law  requires  the  recording 
of  such  instruments,  or  else  that  possession  be  given  before  levy 
of  attacliments  or  executions  thereon  as  essential  to  priority,  is 
overcome  by  the  priority  of  an  attachment  levy  of  the  same  prop- 
evty  in  a  proceeding  in  rem  against  it  made  before  the  recording 
of  such  mortgage,  before  delivery  of  possession  of  the  prop- 
erty in  pursuance  thereof.  ^  Though  it  is  true  that  the  validity 
of  a  contract  is  governed,  as  a  general  principle,  by  the  lav/  where 
made,  yet  it  is  not  so  if  such  conclusion  conflict  with  the  rights 
of  others,  where  the  property  is  situated,  or  with  the  laws  of  the 
State  of  its  actual  situs  J  Therefore,  a  mortgage  made  in  !N"ew 
York  on  personal  property  situated  at  the  time  in  Illinois,  is  post- 
poned in  favor  of  an  attachment  levy  of  the  same  property  in  a 
proceeding  inrem^  and  by  a  subsequent  condemnation  thereof  in 
sale  in  such  proceeding.  The  title  of  the  purchaser  relates  back 
to  the  date  of  the  attachment  levy,  and  takes  precedence  of  trans- 
fers or  liens  unrecorded  at  that  time,  and  without  change  of  pos- 
session of  the  property  in  the  debtor. *  Though,  for  some  pur- 
poses, a  fiction  of  law  prevails  that  personal  property  attends  the 
owner,  and  that  transfers  of  it  by  him,  valid  at  his  domicile,  and 
there  made,  are  valid  in  such  other  State  as  the  property  may  at 
the  time  be  situated  in.  But  this  is  only  as  against  the  vendor,  or 
volunteers,  and  not  as  against  intervening  ho7ia  fide  claims  aris- 
ing under  the  law  of  the  actual  situs.  To  these,  th.\&  fiction  ^\\'q& 
place  or  yields.  It  is  only  by  comity  that  such  contracts  made  in 
one  State,  wlien  valid  there,  are  enforcible  at  all  in  another  State; 
therefore,  when  their  enforcement  conflicts  Avith  rights  acquired 

'  Aldrich  v.  JEtna  Company,  8  Wall.  100 ;  Green  v.  Van  Buskirk,  5  Wall 

491.  807;  Guillander  ».  Howell,  35  N.Y. 

2  Green  v.  Van  Buskirk,  7  Wall.  139 ;  G57. 
Milne  v.  Morton,  6  Binn.  3G1 ;  Taylor  ^  Green  v.  Van  Buskirk,  7  Wall.  139 

•y.  Boardman,  25  Vt.  581 ;  Emerson  v.  Guillauder  v.  Howell,  35  N.  Y.  657. 
Patridge,  27  Yt.  8;  Ward  v.  IMorrison,  "  Green  v.  Van  Buskirk,  7  Wall.  139 

25  Vt.  593 ;  Xorris  v.  Muniford,  4  Mar-  Golden  v.  Cockrill,  1  Kansas,  259. 
tin,  20;  Lanfear  v.  Sumner,  17  Mass. 


70  IXTER-STATE    LAW    OF    CONTRACTS. 

under  the  latter's  own  law  that  comity  ceases  to  exist  in  the 
particular  case.^ 

Foreign  mortgage  of  land  to  prefer  creditors.  Assignments. 
A  mortgage  to  secure  a  bona  fide  debt,  duly  executed  and  re- 
corded in  Iowa,  upon  lands  in  that  State,  and  made  by  a  non-resi- 
dent debtor,  in  view  of  insolvency,  is  not  affected  by  the  fact  of 
the  same  debtor  making,  on  or  about  the  same  day,  in  another 
State  wherein  he  resides,  a  general  assignment  of  all  his  property 
in  the  latter  State  for  benefit  of  his  creditors.'  By  the  laws  of 
Iowa,  a  failing  debtor  may  make  a  mortgage  to  secure  a  particu- 
lar creditor,  and  the  same  will  not  be  held  invalid  by  reason  of 
his  faih'ng  condition ;3  and  such  is  none  the  less  the  rule  if  the 
debtor  be  a  citizen  or  a  resident  of  another  State.*  The  effect 
of  tlie  assignment  in  the 'State  where  that  is  made,  under  the 
laws  of  that  State,  as  to  validity  or  invalidity  thereof,  will  have 
no  influence  or  bearing  upon  the  validity  of  the  mortgage  in 
Iowa.  5  It  may  be  stated,  as  a  general  rule,  that  where  a  for- 
eign assignment  conflicts  with  the  local  law,  the  latter  will  pre- 
vail. So  that  land  attached  where  situated  subsequent  to  a  foreign 
assignment  will  prevail.** 

Bailroad  mortgage.  A  mortgage  of  a  railroad  is  valid,  though 
executed  by  the  president  in  a  different  State  than  that  where  the 
railroad  corporation  exists,  if  its  execution  be  otherwise  sufficient 
and  is  authorized  by  the  directory,  although  the  vote  of  authority 
be  silent  as  to  the  place  where  it  shall  be  executed.''  And  such 
mortgage,  if  shown  on  its  face  to  be  so  intended,  may  legally  call 
for  the  rate  of  interest  allowable  where  the  road  is  situated, 
although  it  is  a  higher  rate  than  that  allowed  where  the  mortgage 
is  executed. 

XI.     Laborers'  Lien  on  Inter-State  Eafts. 

Rafts  of  lumber  floated  out  of  one  State  into  another,  in 
which  latter  State  a  lien  on  rafts  of  lumber  is  given  by  law  to- 
laborers  assisting  to  run  such  rafts,  become  liable  to  the  laborers' 

'  Green  c.  Van  Buskirk,  7  Wall.  139,  *  Lyon  v.  Mcllvaine,  24  Iowa,  9. 

150,151.  *  Burrill  on  Assignments,   ^  304; 

»  Lyon  n.  Mcllvaine,  24  Iowa,  9.  Stoiy's  Conf.  of  Laws.  §§  327.  423  a. 

2  Lampson  t.  Arnold,  19  Iowa,  479;  ''  Cheever  t.  Rutland  &  Bur.  R.  Rw 

Lyon  c.  Mcllvaine,  24  Iowa,  9.  Co.,  39  Vt.  G53. 

*  Lyon  tj.  Mcllvaine,  24  Iowa,  9. 


CONTRACTS  OF  AFFREIGHTMENT.  71 

lien  on  arriving  in  sucli  latter  State  for  whatever  sum  of  money 
may  be  due  them,  and  the  same  will  there  be  enforced,  if  applied 
for,  on  arrival  of  such  rafts  at  the  destined  port  in  such  State  for 
which  they  started.^  Nor  will  it  alter  the  case  as  to  the  right  of 
the  lien,  that  the  owner  of  the  raft  contracts  with  another  person 
to  make  the  run  at  his  own  expense  to  the  destined  point;  the 
laborers  are  none  the  less  entitled  thereto,  if  there  is  no  agree- 
ment with  them  to  the  contrary.^ 

XII.     Contracts  of  Affeeightment. 

Contracts  for  interStSite  aflfreightment,  valid  in  the  State  where 
made,  are  valid  elsewhere  if  not  in  contravention  of  the  law  of 
such  other  place  or  places, ^  and  when  made  by  a  consignor  ot 
goods  delivered  for  carriage,  are  binding  on  the  consignee  of 
another  State  the  same  as  if  made  by  himself. ^ 

Existing  rights  of  shippers,  attached  to  freight  consigned  for 
interStSite  carriage,  are  not  prejudiced  by  the  property  being 
carried  into  another  State.  ^ 

A  bill  of  lading  and  contract  of  shipment  made  in  one  State 
for  the  shipment  and  transportation  of  property  to  a  point  in 
another  State,  and  on  the  faith  of  which  advances  are  made  in 
the  State  where  the  transaction  occurs,  is  a  contract  governed 
by  the  laws  of  the  State  where  made,  if  between  citizens  of  such 
State.^  The  person  thus  making  the  advances  on  the  bill  of 
lading  becomes  the  legal  owner  of  the  property — not  absolutely — 
but  as  security  for  the  reimbursement  of  his  advances.''  The 
obligation  to  reimburse  the  advances  is  in  legal  effect,  and  in  the 

'  Hanson  v.  Hiles,  34  Iowa,  350.  ■>  First  Nat.  Bank  of  Toledo  v.  Shaw, 

2  Ibid.  61  N.  Y.  283 ;  First  Nat.  Bank  of  Cin- 

3  Robinson  «.  Merchants'  Dispatch,  cinnati  v.  Kelly,  57  N.  Y.  34;  Bank 
45  Iowa,  470;  Marine  Bank  of  Chi-  of  Rochester  v.  Jones,  4  N.  Y.  497; 
cago  V.  AVright,  48  N.  Y.  1.  Bailey  v.  Hudson  R.  R.  Co.,  49  N.  Y. 

*  Robinson  1).  Merchants' Dispatch,  70;  Dows  v.  Greene,  24  N.  Y.  6:38; 

45  Iowa,  470 ;  Marine  Bank  of  Chi-  Lickbarron  v.  Mason,  2  T.  R.  63,  and 

cago  V.  Wright,  48  N.  Y.  1.  Hare  &  Wallace's  Notes  to  Smith's 

^  Story's  Conf  of  Laws,  §§  401,  402,  Leading  Cases,  vol.  1,  7th  ed.  pp.  1147, 

402  a;  Marine  Bank  of   Chicago  v.  1227 ;    Marine    Bank  of   Chicago  v. 

Wright,  48  N.  Y.  1.  Wright,  48  N.  Y.  1 ;  Cayuga  County 

« First  Nat.  Bank  of  Toledo  v.  Shaw,  Nat.  Bank  v.  Daniels,  47  N.  Y.  631. 
61  N.  Y.  283 ;  First  Nat.  Bank  of  Cin- 
cinnati  v.  Kelly,  57  N.  Y.  34. 


72  INTER-STATE    LAW    OF    CONTRACTS. 

absence  of  any  other  understanding,  an  obligation  to  make  such 
reimbursement  at  the  same  place  where  the  advancement  is 
made. 

Bills  Drawn  on  Consignee.  This,  too,  although  bills  are  drawn 
on  the  consignee  in  favor  of  the  person  making  the  advances,  and 
for  the  purpose  of  reimbursing  the  same.  The  effect  intended 
is  repayment  there  by  means  of  such  bills,  and  the  law  of  the 
place  governs  the  transaction.  ^  When  the  reimbursement  is 
completed,  the  ownership  then  is  in  the  person  thus  secured,  no 
longer  for  his  own  security,  but  in  trust  for  the  consignee  or  real 
owner  of  the  property." 

AfTreightment  Contracts  by  Foreign  Corporations.  Contracts 
of  affreightment  or  carriage  made  in  one  State  by  a  railroad  cor- 
poration of  another  State,  and  to  be  performed  in  the  latter  State, 
are  governed,  as  to  performance,  by  the  laws  of  the  latter  State,' 
and  the  fact  that  a  part  of  the  carriage  is  across  an  intermediate 
State  boundary  river,  over  which  both  States  possess  the  right  of 
navigation  and  used  by  their  respective  inhabitants,  does  not  alter 
the  case  in  law.* 

XIII.    Warehouse  Eeceipts, 

The  transfer,  by  delivery  and  endorsement  of  warehouse  re- 
ceipts, in  one  State,  for  goods  stored  in  a  warehouse  of  a  different 
State  in  the  ordinary  course  of  commerce,  is  a  transfer  of  the 
goods,  as  actual  delivery  is  impracticable,  and  will,  where  the 
transaction  is  a  hoiia  fide  one,  hold  over  process  of  attachment 
against  the  person  making  the  transfer,  although  sucii  change  of 
ownership  and  transfer  be  unknown  to  both  the  warehouseman 
and  the  plaintiff  in  attachment.  The  force  thereof  is  like  the 
transfer  of  a  ship  at  sea  —  delivery  is  impracticable.  Sucli  trans- 
actions are  a  necessity  of  internal  trade  and  result  from  the 
usages  thereof.' 

>  First  Nat.  Bank  of  Toledo  ».  Shaw,  iams,  13  Pick.  297 ;  City  Bank  c.  Rome, 

61  N.  Y.  283, 292 ;  Boyle  o.  Zacharie,  6  W.  «&  0.  R.  R.  Co..  44  N.  Y.  136. 

Pet.  635,644;  Lanussee  «.  Barker,  3  *  Brown  c.  Camden  &  Atlantic  R.  R. 

Wheat.  101 ;  Grant  -o.  Healey,  3  Sumn.  Co.,  83  Penn.  St.  316. 

523.  *  Ibid. 

"  First  Nat.  Bank  of  Toledo  t.  Shaw,  » Gibson  r.  Stevens,  8  IIow.  884. 
61  N.  Y.  283,  292,  294;  Allen  v.  Will- 


STOPPAGE    IN    TRANSITU.  73 


XIV.     Stoppage  in  Teansittj. 

Inter-State  Consignments.  In  cases  involving  the  riglit  of 
stoppage  m  transitu  of  inter-^tSiie,  consignments  of  property  to 
be  carried  by  common  carriers  out  of  one  State  into  or  through 
another,  or  into  or  through  still  another  State  or  States,  the  per- 
sonal right  of  the  consignor  to  thus  stop  and  reclaim  the  prop- 
erty is  not  prejudicad  by  its  passing  out  of  one  State,  into  or 
through  another  State  or  States,  but  follows  the  property  wherever 
it  goes  until  delivery  to  the  consignee,  and  may  be  enforced  in 
every  such  other  State  into  which  the  goods  are  carried. ^  This 
right  will  override  the  claim  of  intervening  purchases  made  of 
the  consignee,  as  also  levies  against  him  during  the  transit,  to  the 
same  extent  as  it  would  in  the  State  wherein  the  consignment  is 
made. 2  But  the  prevailing  idea  that  the  carrier  is  bound  to 
deliver  up  the  goods  on  mere  claim  of  the  consignor  to  have  the 
same,  and  at  any  and  every  place  at  which  the  goods  may  arrive, 
or  which  they  may  in  their  transit  pass,  or  else  subject  himself, 
on  refusal,  to  an  action  for  conversion  of  the  same,  is  altogether 
erroneous.  "While  there  is  no  want  of  authority  to  show  that  the 
consignor  is  entitled,  under  proper  circumstances,  to  reclaim  the 
goods,  and  to  have  possession  thereof,  yet  we  have  been  unable  to 
find  any  decision  imposing  upon  the  carrier  the  duty  of  person- 
ally knowing  the  consignor,  so  as  to  be  truly  advised  of  his 
identity,  or  charging  the  carrier  with  knowledge  of  the  facts  on 
Avhich  the  right  of  stoppage  in  transitu  rests  in  each  particular 
case,  or  compelling  the  carrier  to  become  judge,  jury  and  admin- 
istrator of  the  law  in  each  particular  case,  and  as  a  sequence 
thereto  to  deliver  up  the  property  to  whoever  shall  assume  to 
have  such  rights  and  shall  give  notice  thereof  and  demand  the 
property,  on  peril  of  the  carrier  being  deemed  to  have  converted 
the  goods  to  his  own  use  in  case  of  refusal,  or,  of  M'hat  is  still 
worse,  of  being  chargeable  in  damages  worth  the  value  thereof 
to  the  consignee,  in  case  of  such  delivery  to  a  wrong  claimant,  or 
even  to  the  right  person,  but  when  no  real  cause  for  stoppage  in 
transitu  exists. 

1  Story'3  Conf.  of  Laws,  §§  401,  402,      Desty's  Shipping  and  Admiralty,  g§ 
402  a ;  Inglis  v.  tJsherwood,  1  East.  515 ;      228,  229. 
"Redfield  on  Carriers,  §   238  et  seq.;         ■  Story's  Couf.  of  Laws,  §  403. 


74  INTER-STATE    LAW    OF   CONTRACTS. 

On  the  contrary,  this  right  is  to  be  enforced  as  other  rights  are 
enforced;  that  is,  tlirough  the  courts  and  officers  of  the  law.  The 
carrier  is  but  a  stakeholder  between  the  consignor  and  consignee, 
and  is  not  bound  to  know  the  consignor  personally ,'  is  not 
bound  to  know  whether  the  goods  were  consigned  or  not  on  a 
purchase  and  sale  thereof,  or  if  so,  whether  or  not  the  purchase 
money  was  paid  or  an  indebtedness  was  incurred  therefor;  or,  if 
the  hitter  was  the  case,  is  not  bound  to  know  whether  the  debtor 
was  then  or  since  has  proved  insolvent,  or  whether  the  goods 
were  obtained  by  fraud,  or  the  facts  as  to  any  cause  which  in  law 
is  ground  for  stoppage  in  transitu. 

Remedy  by  Replevin.  The  remedy  of  the  consignor,  if  he 
has  rights  in  such  respect,  is  by  process  of  replevin  against 
the  carrier  to  obtain  possession  of  the  goods,  and  the  only 
effect  of  notice  to  the  cannier  is  to  prevent  the  latter  from 
delivery  of  the  same  to  the  consignee  until  reasonable  time  is 
elapsed  for  the  consignor  to  assert  his  rights.^  And  we  hold 
further,  that  in  such  case,  although  the  carrier  be  made  defend- 
ant, yet  if  he  act  in  good  faith,  and  do  no  more  than  to  avoid 
committing  himself,  he  will  not  even  be  liable  for  costs.  In  such 
actions,  however,  the  carrier  should  notify  the  consignee  thereof, 
if  not  already  made  a  party,  and  disclaiming  other  interest  tlian 
as  carrier,  move  to  substitute  the  consignee  as  defendant  in  his 
stead,  that,  as  the  real  parties  in  interest  they  maj'  interplead.^ 

Bill  of  Interpleader.  But  the  safer  way  for. the  carrier,  in 
cases  of  doubtful  right  of  the  respective  claimants  to  have 
delivery  of  the  goods,  and  which  must  often  if  not  always  be 
the  result  of  inter-State  shipment  over  long  lines  of  carriage, 
whenever  conflicting:  claims  arise  as  growins:  out  of  the  rijrht  of 
stoppage  in  transitu,  is  to  place  the  goods  in  the  hands  of  a  re- 
liable bailee,  and  file  against  the  claimants  and  parties  in  interest 
a  bill  of  interpleader,  to  settle  the  rights  of  the  parties  in  that 
respect,  and  thereby  protect  the  carrier  from  the  hardship  of  de- 
ciding to  whom  the  right  of  delivery  belongs.^  Chancellor  Ke!nt, 
in  recognition  of  the  injustice  of  a  rule  that  would  impose  upon 

■  Houston  on  Stoppage  in  Transitu,         'Abbott  on  Shipping,  511  et  seq. 
51;  Abbott  on  Shipping,  511  et  seq.         «3    Kent,  *215,   *216;   Jordan  t>. 
The  notice  places  the  goods  quasi  in      James,  5  Ham.  88, 107. 
custodia  legis.    Abbott  on  Shipping, 
528. 


INVIOLABILITY    OF    CONTRACTS.  75 

the  carrier,  in  disputed  cases  of  stoppage  in  transitu^  the  neces- 
sity of  deciding,  at  his  own  risk,  to  whom  the  right  of  delivery 
belongs,  savs  that  the  carrier  onglit  not  to  be  put  to  such  peril,  or 
to  the  uncertainty  of  indemnity, ^  but  "should  know  to  whom  of 
right  he  can  deliver  the  goods,"  and  that  it  "  is  safer  for  the 
master  to  deposit  the  goods  with  some  bailee  until  the  rights  of 
the  claimants  are  settled,  as  they  can  always  be,  upon  a  bill  of  in- 
terpleader in  chancery,  to  be  tiled  by  the  master." 2 

XY.     Inviolability  of  Contracts. 

No  State  can  pass  a  law  impairing  the  obligation  of  contracts. 
All  such  State  laws  are  simply  void.^  But  what  amounts  to  im- 
pairing the  obligation  of  a  contract,  within  the  meaning  and 
intent  of  the  constitutional  provision  above  referred  to,  has  been 
the  subject  of  much  discussion,  and  the  earnest  consideration  of 
our  national  courts,  in  whom  alone,  under  the  Constitution,  the 
decision  rests.  The  decisions  are  uniform,  however,  that  the  in- 
validity of  a  State  law  does  not  depend  upon  the  degree  or  extent 
to  which  it  modifies  or  changes  the  rights  and  obligations  of  the 
parties  to  a  contract,  or  impairs,  in  any  manner,  a  contract;  but 
a  State  law  is  void  that  does  it  at  all. 

Such,  too,  is  the  case,  whether  it  be  by  mere  statutory  enact- 
ment, or  by  a  provision  or  clause  of  a  State  constitution;  for  it  is. 
not  merely  the  legislatures  of  the  States,  but  the  States  them- 
selves, that  are  thus  inhibited  by  the  national  Constitution.'* 

1  3  Kent,  *  215,  *  216.  Binghamton     Bridge,    3    Wall.    51; 

«  Ibid.  Green  v.  Biddle,  8  Wheat.  1 ;  Society 

3  Article  1,  §  10,  Const,  of  U.  S. ;  for  Propagation  of  the  Gospel  v.  New 

Fletcher  v.  Peck,  6  Cr.  87;  Pawlet  v.  Havea,8  Wlieat.  4G4;Cooleyon  Const. 

Clark,  9  Cr.  272;  Terrett  v.  Taylor,  9  Limitations,  4th  ed.  333  et  seq.;  Pom- 

Cr.  43;  McGee  v.  Mathis,  4  Wall.  143;  eroy  on  the  Constitution,  3d  ed.  349- 

Thompson  y.  Holton,  6  McL.  386 ;  New  413;    Story  on    the  Constitution,   g§ 

Jersey  v.  Wilson,  7   Cr.   164;    Dart-  1374-1400;  Sedwick  on  the  Construe- 

mouth  Colleger.  Woodward,  4  Wheat.  tion  of  the  Constitution,  G03  et  seq.; 

518;  Dodge  v.  Woolsey,  18  How.  331 ;  Smith  on  Statutory  Construction,  382 

Slate  Bank  of  Ohio  v.  Knoop,  16  How.  et  seq. 

369;  Providence  Bank  v.  Billings,  4  *  Green  v.  Biddle,  8  Wheat.  1;  New 

Pet.  514;  Jetierson  Branch   Bank  v.  Jersey  v.  Wilson,  7   Cr.   164;    Dart- 

Skelly,  1  Black,  436;  Hawthorne  «.  mouth  College  c.  Woodward,  4  Wheat. 

Calef,  2  Wall.  10;    Corning  v.  Mc-  518;  Briscoe  c.  Bank  of  Kentucky,  11 

Cullough,   1   N.  Y.  (47,  49;   Conant  Pet.  257;  Terrett  p.  Taylor,  9Cr.  43; 

V.  Van    Schaick,  24  Barb.  87;    The  Sturges  v.  Crowninshield,  4  Wheat. 


76  INTER-STATE    LAW    OF    CONTRACTS. 

There  May  be  Change  of  Remedy.  The  legislature  may  in  good 
faith,  regulate  the  remedy  by  general  laws,  but  not  to  such  an  ex- 
tent as  to  affect  or  impair  the  obligation  of  the  contract.' 

Rebellious  States  are  within  the  prohibition.  This  inhibition 
extends  not  only  to  States  confessedly  acting  M-ithin  the  national 
union  as  professed  members  thereof,  but  also  to  the  enactments 
of  States  that  have  nominally  seceded  therefrom,  and  are  profes- 
sedly acting  as  integral  parts  and  members  of  an  unlawful  and 
rebel-political  organization ;  so  that,  although  the  merely  domestic 
action  of  such  erratic  States  may  be  enforcible  for  the  protection 
and  good  order  of  society,  when  free  from  constitutional  objec- 
tions, yet  statutes  thereof  which  are  incompatible  with  the  na- 
tional constitution  will  be  held  void  by  reason  thereof,  when 
brought  in  question  after  the  suppression  of  such  hostile  organi- 
zations, upon  the  same  principle  and  to  the  same  extent  as  if 
enacted  by  loyal  States;  and  this,  too,  as  well  in  relation  to  laws 
impairing  the  obligations  of  contracts  as  to  other  unconstitutional 
enactments.  2  In  like  manner  all  enactments  of  such  principal 
rebel  government  itself  will  be  recorded  as  illegal  and  void,  and 
60  of  judicial  order  and  decisions  made  in  virtue  thereof 

Cases  in  illustration.  Personal  liability  for  corporate  debts. 
Release  of  by  law.  A  provision  in  the  charter  of  a  private  cor- 
poration rendering  stockholders  liable-  to  the  amount  of  their 
stock  for  all  debts  of  the  corporation  contracted  prior  to  the  trans- 
fer of  their  stock,  is  a  contract  between  such  stockholders  and  the 
creditors  of  the  corporation,  which  is  impaired  by  a  law  subse- 
quently passed  repealing  such  individual  liability  clause  of  the 
charter.'* 

Bank  bills  receivable,  by  law,  for  taxes.  So,  where  a  bank 
charter  made  the  bills  of  the  bank  receivable  by  tlie  State  in  pay- 

123;  Mason  c.  Haile,  12  Wheat.  870;  on  the  Constitution,  3d  ed.  349-413; 

Charles    River    Bridge    v.    Warren  Story  on  the  Constitution,  §§  1374- 

Bridge,  11  Pet.  420;  Hawkins  v.  Bar-  1400. 

ney's  Lessee,  5  Pet.  456 ;  Farmers'  and  '  Bronson  v.  Kinzie,  1  How.  311 ; 
Mechanics' Bank  17.  Smith,  6  Wheat.  Hawthorne  v.  Calef,  2  Wall.  33; 
131;  Satlerlee  v.  Matthewson,  2  Pet.  Ogdeu  v.  Saunders,  13  Wheat.  270; 
SSO;  Wilkinson  v.  Leland,  2  Pet.  637;  Beers  v.  Haughtou.  9  Pet.  329;  Cool- 
Hawthorne  V.  Calef,  2  Wall.  10;  Mc-  ey's  Const.  Limitations,  4th  ed.  351. 
Gee  V.  Mathis,  4  Wall.  143;  Fletcher  «  Williams  v.  Brutly,  6  Otto,  176. 
T.  Peck,  6  Cr.  88 ;  Dodge  v.  Woolsey,  '  Dewing  v.  Perdicaries,  6  Otto,  193. 
18  How.  331 ;  Cooley  on  Const.  Lim-  *  Hawthorne  v.  Calef,  2  Wall.  10, 
itations,  4th  ed.  333  et  aeq.;  Pomeroy  23. 


INVIOLABILITY    OF    CONTEACTS.  77 

ment  of  taxes,  this  was  held  to  amount  to  a  contract  with  the 
holders  of  the  bills;  and  it  was  further  held  that  an  act  of  assem- 
bly repealing  such  provision  was  void,  as  impairing  the  obliga- 
tion of  the  contract.^ 

An  exclusive  privilege  is  a  contract.  So,  a  provision  in  a 
State  statute  chartering  a  company  to  build  a  toll  bridge,  that  no 
bridge  over  the  same  stream  should  be  built  within  a  given  dis- 
tance from  the  one  thus  authorized  to  be  built,  is  a  contract  be- 
tween the  corporators  and  the  State,  which  is  impaired  by  the 
buildino'  of  another  bridge  over  the  same  stream  within  the  inhib- 
ited  distance,  and  by  act  of  the  legislature  permitting  the  erection 
of  such  latter  bridge,  and  such  subsequent  statute  is  void  as  repug- 
nant to  the  Constitution  of  the  United  States,  which  declares 
that  no  State  shall  make  any  law  impairing  the  obligation  of 
contracts.  2 

Purchases  under  State  exemption  from  taxation.  Likewise  the 
sale  of  lands  by  a  State,  or  scrip  receivable  for  lands  under  a  stat- 
ute providing  as  an  inducement  to  the  purchase  that  the  lands 
should  not  be  taxed  for  a  given  number  of  years,  or  until  reclaimed 
from  their  condition  as  swamp  lands,  amounts  to  a  valid  contract 
between  the  State  and  the  purchaser  or  holder  of  the  scrip  or 
lands,  which  is  irrepealable  by  the  State ;  and  the  enactment  sub- 
sequently of  a  law  repealing  such  exemption  clause  and  provid- 
ing for  taxing  such  lands,  before  the  expiration  of  the  time  spe- 
cified, or  reclaimation  of  the  land  from  their  swamp  land  condition,, 
impairs  the  contract  within  the  meaning  of  the  Constitution, 
and  is  therefore  unconstitutional  and  void.^ 

Curative  laws.  But  curative  laws,  making  contracts  valid,  do 
not  impair  the  obligation  of  contracts.* 

Bank  charter  exemption  from  taxation  for  bonus  paid.  But  a 
State  law  which,  in  consideration  of  a  honus,  embodies  in  a  bank 
charter  a  provision  exempting  the  bank  from  taxation,  is  a  con- 
tract inhibition  against  taxation  of  the  stockholders  of  such  bank, 
upon  their  stock  therein;  and  a  law  creating  such  tax  is  void  for 
impairing  the  contract.  Yet  such  inhibition  does  not  extend  or 
exist  longer  than  the  term  of  the  charter,  and  if  thereafter  the 

J  Woodruff!).  Trapnall,  10  How.  190.         »  McGee  c.  Mathis,  4  Wall.  143. 
2  The  Binghamton  Bridge,  3  Wall.         *  Satterlee  v.    Matthewson,  3  Pet. 
51.  380. 


78  IXTER-STATE    LAW    OF    COXTKACTS. 

charter  be  renewed  without  such  provision,  there  is  no  longer 
€uch  restriction  as  to  taxation  as  to  the  bank  or  its  stocks.  ^ 

Laws  affirming  invalid  and  doubtful  contracts.  But  State  laws 
making  valid  irregular  and  doubtful,  or  even  void,  contracts,  not 
thereby  affecting  injuriously  contract  rights  of  third  persons,  are 
not  laws  impairing  the  obligations  of  contract  within  tlie  mean- 
ing of  the  United  States  Constitution.' 

Legal  dissolution  of  private  corporations.  Nor  does  the  dis- 
solution of  a  private  corporation  by  authority  of  an  existing  State 
law  or  laws  providing  therefor,  and  for  closing  up  its  concerns, 
operate  as  against  the  corporation  creditors  as  an  impairment  of 
their  contract  of  indebtedness.  The  obligation  of  those  contracts 
continues,  and  are  enforcible  against  the  assets  of  the  defunct 
corporation,  and  they  could  reach  nothing  else  if  the  corporation 
had  not  dissolved. ^  Every  creditor  is  supposed  to  know  the 
nature  of  such  corporations,  and  their  liability  to  dissolution,  vol- 
untary or  forced,  and  to  contract  with  it  in  reference  thereto. 
Creditors,  in  such  case,  must  look  to  the  corporate  assets,  which 
will  be  liable  so  far  as  not  transferred  into  the  hands  of  honafide 
purchasers.  Tlie  case  is  no  harder  than  that  of  creditors  of  a 
natural  person  who  dies.  They,  too,  must  look  to  the  assets  for 
satisfaction  of  their  demands.  If  there  are  no  assets  in  either 
case,  yet  the  contract  obligation  still  remains,  and  is  in  no  wise 
impaired.* 

Existing  Laws  Enter  into  Contracts.  The  laws  of  a  State  ex- 
isting at  the  time  of  making  a  contract  enter  into  it  as  a  part 
thereof,  so  far  as  regards  its  force  and  obligation;  and  its  judicial 
enforcement  by  judgment  or  decree,  and  process  of  the  courts; 
hence,  subsequent  laws  requiring  property  levied  on  and  offered 
for  sale,  or  offered  for  sale  under  decree  of  the  courts,  to  be  ap- 
praised, and  requiring  bids  of  two-thirds  tlie  appraised  value  as 
a  condition  prerequisite  to  a  sale,  superadds  a  condition  unknown 
to  the  contract,  and  obstructs  and  impairs  the  obligation  of  the 
same,  and  is  therefore  void.  The  Supreme  Court  of  the  United 
States  have  held  that  the  obligation  of  a  contract  is  to  perform 
the  promises  and  undertakings  contained  therein;  the  right  of 

>  Gordon  n.  The  Appeal  Tax  Court,  »  Watson  v.  Mercer,  8  Pet.  88;  Sat- 

8  How.  133;  Cbes  t.  The  Appeal  Tax  terlee  v.  MaUhewson,  2  Pet.  380. 

Court,  8  How.  133 ;  Dodge  v.  Woolsey.  »  Mumma  «.  Potomac  Co.,  8  Pet.  281. 

18  How.  331.  <  Ibid. 


INVIOLABILITY    OF    CONTRACTS.  79 

the  oLligee  to  bring  suit,  obtain  judgment,  and  take  out  final 
process  thereon,  and  enforce  it  until  satisfied,  pursuant  to  the 
substantial  features  of  the  existing  law,  and  that  if  such  law 
■allows  a  sale  of  property  for  what  it  will  bring,  that  a  subsequent 
law  prohibiting  a  sale  unless  for  a  named  proportion  of  its  value, 
is,  as  stated,  void,  for  impairing  the  obligation  of  the  contract.  ^ 

So,  where  the  charter  of  a  bank  declared  it  "  capable  and  able, 
in  law,  to  have,  possess,  receive,  retain,  and  enjoy,  to  themselves 
^nd  their  successors,  lands,  rents,  tenements,  hereditaments, 
goods,  chattels,  and  efiects,  of  what  kind  soever,  nature,  and 
quality,  *  *  *  and  the  same  to  grant,  demise,  alien,  or  dispose 
of  for  the  good  of"  such  bank;  and  "to  receive  money  on  de- 
posit, and  pay  away  the  same  free  of  expense,  discount  bills  of 
exchange  and  notes,"  a  subsequent  law  prohibiting  the  bank 
from  transferring,  by  endorsement  or  otherwise,  any  note,  bill  re- 
ceivable, or  other  evidence  of  debt,  was  held,  inasmuch  as  the 
charter  privileges  so  granted  amounted  to  a  contract  between  the 
State  and  the  bank,  an  enactment  which  violated  the  oblio:ation 
of  the  contract,  and  was  therefore  unconstitutional  and  void.^ 

Abolition  of  Imprisonment  for  Debt.  A  State  may  pass  a  law 
discharging  persons  imprisoned  for  debt,  and  such  a  law  does  not 
impair  the  obligation  of  the  contract.  It  merely  modifies  the 
remedy,  but  does  not  take  the  remedy  away.  Imprisonment  is 
no  part  of  a  contract  of  indebtedness,  and  therefore  releasing  a 
prisoner  who  is  held  for  a  debt  does  not,  in  any  manner,  impair 
the  contract  creating  the  debt.  The  power  of  a  State  to  impose 
imprisonment  as  part  of  the  remedy,  also  enables  it  to  abolish 
that  part  of  the  remedy  generally;  and,  if  it  be  allowable  by  a 
.general  law,  it  is  also  allowable  in  special  cases.  ^  In  Sturges  v. 
Crowninshield,  here  cited,  the  Supreme  Court  of  the  United 
States  say:  "  Imprisonment  of  the  debtor  may  be  a  punishment 
for  not  performing  his  contract,  or  may  be  allowed  as  a  measure 
for  inducing  him  to  perform  it.  But  a  State  may  refuse  to  inflict 
this  punishment,  or  may  withhold  it  altogether,  and  leave  the 
contract  in  full  force.     Imprisonment  is  no  part  of  the  contract, 

'  Bronson  v.  Kinzie,  1  How.  311;      6  How.  301;  State  Bank  of  Ohio  v. 
McCracken  v.  Hay  ward,  6  How.  608;      Knoop,  16  How.  369. 
Howard  «.  Bugbee,  24  How.  461.  » ]\jason  v.  Haile,  12  Wheat.  370: 

»  Planters'  Bank  of  Miss.  v.  Sharp,      Sturges  v.  Crowninshield,  4  "Wheat. 

200;  Beers  v.  Haughton,  9  Pet.  329. 


80  INTER-STATE    LAW    OP    CONTRACTS. 

and  simply  to  release  the  prisoner  does  not  impair  its  obliga- 
tion." Such  being  the  power  of  a  State  legislature,  it  results 
therefrom  that  the  enactment  of  a  law  discharging  a  prisoner 
held  for  debt,  on  bonds,  in  the  prison  bounds,  and  the  going  at 
large  of  such  prisoner  beyond  said  bounds,  as  the  result  of  such 
discharge,  neither  violates  the  obligation  of  any  contract  nor 
amounts  to  a  breach  of  condition  of  the  bonds,  conditioned  that 
the  prisoner  shall  "  continue  to  be  a  true  prisoner,  in  the  custody, 
guard  and  safe-keeping,  *  *  *  until  he  shall  be  lawfully  dis- 
charged;" for  such  a  release,  by  operation  of  law,  is  a  lawful  dis- 
charge. 1 

State  Insolvent  Laws.  And  so  it  is  held  that  State  insolvent 
laws  do  not  impair  the  obligations  thereafter  entered  into  be- 
tween the  citizens  of  the  States  by  which  they  are  enacted.* 

Taxing  a  City's  Own  Indebtedness.  An  ordinance  of  a  city 
taxing  its  own  indebtedness,  as  the  property  of  its  non-resident 
creditor,  is  illegal,  and  so  is  a  provision  thereof  requiring  the 
amount  of  the  tax  to  be  deducted  and  withheld  from  the  creditor 
out  of  the  accruing  interest  on  such  del)t.  Such  ordinances  are 
void  as  violating  and  impairing  the  obligation  of  the  contract' 
In  the  language  of  Strong,  J. :  "  States  and  cities,  when  they 
borrow  money,  and  contract  to  pay  it  with  interest,  are  not  acting 
as  sovereignties.  They  come  down  to  the  level  of  ordinary 
individuals."* 

XYI.    Usury. 

This  subject  has  been  incidentally  treated  of  in  Sec.  IX.  of  this 
chapter,  under  the  head  of  "  Commercial  Paper."  As  connected 
with  our  general  subject,  it  can  present  itself  in  either  one  of 
three  phases:  1st.  "Where  the  contract  is  made  in  one  State,  and 
is  pertorraable  in  another,  and  the  interest  contracted  for  is  usuri- 
ous according  to  the  lex  loci  contractus,  but  is  allowable  and  valid 
by  the  lex  solutionis,  or  the  law  of  the  place  where  the  contract 
is  to  be  performed.  2d.  Where  the  interest  contracted  for  is 
valid  by  the  lex  loci  contractus,  but  is  invalid  and  usurious  by 

'Mason  «.  Haile,  13  Wheat.  370;  'Murray  n.  City  of  Charleston,  6 
Beers  v.  Haughton,  9  Pet.  329.  Otto,  432. 

«  Ogdea  t.  Saunders,  12  Wheat.  213 ;         *  Ibid.  445. 
Cooiey's  Const  Limitations,  4th  ed. 
360  tt  seq. 


USURY.  81 

the  lex  solutio7iis.  3d.  "Where  the  rate  of  interest  contracted  for 
is  allowable  by  tlie  lex  loci  contractus,  and  the  contract  does  not 
specify  any  place  for  the  performance  of  the  contract,  but  the 
interest  so  contracted  for  happens  to  be  usurious  by  the  lex  fori^ 
or  the  law  of  the  place  where  the  contract  happens  to  be  sued 
upon.  And  let  us  now  consider  the  first  division.  It  may  be 
asserted,  as  a  general  and  now  well  established  doctrine  that  if 
the  interest  is  valid  by  the  lex  solutionis^  or  the  law  of  the  place 
of  performance,  notwithstanding  it  be  usurious  by  the  lex  loci 
contractus,  such  contract  and  interest  will  be  upheld  in  both 
States,  in  the  absence  of  fraud  or  any  intent  to  evade  the  law.'^ 
When  parties  contract  with  reference  to  the  laws  of  a  particular 
State,  it  is  proper  that  those  laws  should  govern  their  contract  in 
whatever  forum  the  contract  is  construed  or  litigated  upon. 
Those  laws  form  an  integral  part  of  their  contract,  and,  as  a  gen- 
eral rule,  to  hold  otherwise,  would  be  a  breach  of  State  comity, 
and  the  precursor  of  much  confusion.  2d.  It  should  follow,  as 
a  necessary  sequence  of  our  first  classification,  that  if  the  lex 
solutionis  governs,  a  contract  which  provides  for  interest  allowed 
by  the  lex  loci  contractus,  but  which  interest  is  usurious  accord- 
ing to  the  lex  solutionis,  or  the  place  where  the  contract  is  to 
be  performed,  will  be  governed  by  the  law  of  the  latter  place 
and  the  interest  will  accordingly  be  construed  as  usurious.^  This 
doctrine  has  not,  however,  received  the  unanimous  concurrence  of 
courts  and  authors.  It  having  been  asserted  by  some  that  even 
though  the  interest  is  usurious  by  the  lex  solutionis,  or  the  law 
of  the  place  where  the  contract  is  to  be  performed,  yet,  if  the 
interest  is  allowed  by  the  lex  loci  contractus,  the  same  would  be 
allowed,  because,  as  is  said,  "  the  parties  may  stipulate  the  rate 
of  interest  of  either  country,  and  thus,  by  their  own  express  con- 
tract, determine,  with  reference  to  the  law  of  which  country  that 

'  Andrews  t.  Pond,  13  Pet.  Go,  77,  of  Laws,  §  503;  Surges'  Com.,  vol.  3, 

78;    Boyer  t).  Edwards,  4  Pet.  Ill;  p.  774;  Foote's  Private  International 

Balme  'o.  Wombaugh,  38  Barb.  353;  Law,  370;  Westlake's  Private  Inter- 

Pratt  v.  Adams,  7  Paige,  615 ;  Arnold  national  Law,  §  206. 
t).  Potter,  23  Iowa,  194 ;  Junction  Kail-         "  See  cases  cited  in  the  preceding, 

road  t).  Ashland  Bank,  12  Wall.  226;  and  also  Wharton's  Conf.  of  Laws,  § 

Parhamt.  Pulliam,5Cold.497;  Dun-  504;    Andrews  «.  Pond,  13  Pet.  65; 

can  t.  Helm,  33  La.  Ann.  418;  Tyler  Story's  Conf.  of  Laws,  §§  290,  304  6; 

on  Uusury,  81  et  seq.;  Story's  Conf.  Tyler  on  Usury;  Burges' Com.  on  Co- 

of  Laws,  §  391  et  seq.;  Wharton's  Conf.  lonial  Laws,  vol.  3,  p.  774, 
6 


82  INTER-STATE    LAW    OF    CONTRACTS. 

incident  of  the  contract  shall  be  decided."  *  "We  do  not,  however, 
regard  it  a8  consistent  witli  the  doctrine  which  has  been  above 
stated  under  our  first  division.  Neither  do  we  think  that  it  is 
consistent  with  reason  that  the  courts  of  a  State  sliould  enforce  a 
contract  made  to  be  performed  within  that  State,  and  which  con- 
tract, in  terms,  overrides  an  express  law  of  that  very  State.  ^  If, 
however,  the  contract  was  brought  before  the  courts  of  the  State 
where  made,  it  might  be  reasonable  to  suppose  that  the  local  court 
would  enforce  the  interest,  inasmuch  as  the  same  would  be  valid 
by  their  laws.  AVe  think  that  the  doctrine  which  we  have  stated 
is  the  most  consistent  and  conformable  to  the  general  rule.  It  is 
true  that  there  are  cases  which  hold  that  the  interest  being  allow- 
able where  the  contract  is  made,  will  be  enforced  in  the  State 
where  ])ayable,  even  though  usurious  there,  on  the  ground  that 
the  validity  of  purely  personal  contracts  depends  upon  the  law 
of  their  place  were  made.  But  we  are  at  a  loss  to  see  how  this 
reasoning  will  apply,  when  the  j)arties  contemplate,  as  they  are 
presumed  to  do,  by  making  the  contract  performable  in  another 
State,  to  contract  with  reference  to  those  laws.  It  does  not  seem 
for  them  proper  to  say  that,  as  to  the  interest,  the  lex  loci  shall 
govern,  but  as  to  everything  else,  time  for  demand,  days  of  grace, 
etc.,  the  law  of  the  place  of  performance  shall  govern. ^  3d. 
"Where  the  contract  is  made  performable  in  any  place  it  will  be 
presumed  to  be  made  performable  in  the  place  where  made.  The 
usury  laws,  therefore  of  the  loci  contractus  will  govern  the  con- 
tract, and  wherever  the  same  is  construed  or  litigated  upon,  the 
law  of  the  place  where  the  contract  was  made  will  govern  the 

'  Story's  Conf.  of  Laws,  §  304  b.  ance.  Kanaga  ».  Taylor,  7  Ohio  St. 
This  part  of  the  text,  however,  it  134;  Lewis  v.  Headley,  36  111.  433; 
seems,  is  the  work  of  some  one  of  its  Adams  v.  Robertson,  37  111.  45 ;  Daven- 
numerous  editors.  Peck  v.  Mayo,  14  port  v.  Karnes,  70  111.  465 ;  Evans  v. 
Vt.  33;  Depau  v.  Humphreys,  8  Mar-  Anderson,  78  111.  558;  Magu ire  t).  Pin- 
tin,  (N.  8.)  1 ;  Chapman  v.  Robertson,  6  gree,  30  Maine,  508. 
Paige,  629.  *  For  cases   which   hold   different 

2  Wharton's  Conf.  of  Laws,  §§  504-  from  the  text,  the  reader  is  referred  to 

510;  Story's  Conf  ofLaws,gg  291, 298;  Bowen  v.  Bradley,  9  Abbott,  (n.  s.) 

2  Parsons  on  Contract,  *584  and  note.  395;  Clayes  v.  Hooker,  4  Hun.  231; 

Thus,  it  is  said,  as  to  an  ordinary  con-  Depau  v.  Humphreys,  8  Martin,  (n.  s.) 

tract  which  is  to  be  performed  in  a  1 ;  Peck  v.  Mayo,  14  Vt.  33 ;  Pope  v. 

State  other  than  where  made,  that  to  Nickerson,  3  Story,  466;  Kilgore  v. 

be  enforced,  it  must  be  valid,  as  tested  Dempsey,  25  Ohio  St.  413 ;  Bowman 

by  the  laws  of  the  place  of  perform-  v.  Miller,  25  Gratt  331. 


USURY. 


83 


interest*  The  interest  reserved  on  the  contract  being  good  in 
tlie  State  where  made,  will  be  enforced  by  the  courts  of  another 
State,  even  though,  if  it  had  there  been  entered  into,  it  would 
have  been  forfeited  or  declared  void  by  reason  of  its  own  usury 
laws.  2 

Forfeitures  for  usury.  Statutory  forfeitures  for  usury  in  regard 
to  loans  or  contracts  for  payment  of  money  bear  relation  to  the 
remedy.  3  Therefore,  when  such  contracts  are  sued  in  another 
State,  then,  inasmuch  as  in  such  other  State  the  remedy  is  gov- 
erned by  the  law  of  iXi^forum^  it  results,.from  these  conclusions, 
that  in  the  courts  of  such  other  State  the  forfeiture  cannot  be 
enforced ;  it  may  only  be  enforced  when  suit  is  pending  in  the 
State  where  the  statute  exists.* 


'  Lee  t.  Selleck,  33  K  Y.  615 ;  Phil- 
adelphia  Loan  Co.  v.  Towner,  13  Conn. 
124;  DeWolf  V.  Johnson,  10  Wheat. 
367 ;  Davis  ^j.Garr,  6  N.  Y.  124;  Robb 
©.  Halsey,  11  Sm.  «&  M.  140. 


*  Cases  cited  above. 

'  Sherman   v.  Gassett,  9  111.  521 ; 
Lindsay  v.  Hill,  66  Maine,  212. 

*  Ibid. ;  Barnes  ».  Whitaker,  22  111. 
606. 


84  EULES   OF   PEOPERTY   AND   EIGHT. 


CHAPTER  IX. 

EULES   or  PROPERTY  AND   EIGHT  THE  SAME  IN  STATE  AND  NATIONAL 

COURTS. 

I.    When  the  Local  Rules  op  Law  are  followed  by  United  States 

COtJRTS. 

IL    Bund  Conformity  to  State  Rulings  not  Required  of  United 
States  Courts. 

I.    When  the  Local  Rules  op  Law  are  followed  by  United 

States  Courts. 

Except  when  they  conflict  with  the  Constitution  and  treaties 
of  the  United  States  and  acts  of  Congress,  the  laws  of  the  sev- 
eral States  and  well  settled  rules  of  property  and  rights  of  a  local 
nature  of  the  State  courts  are  recognized,  and  are  ordinarily  fol- 
lowed by  the  United  States  courts  in  causes  at  law,  in  the  respect- 
ive States  where  these  courts  are  held,  whether  the  same  be  the 
result  of  statutory  enactments,  common  law  usages,  or  the  deci- 
sions of  highest  State  courts.  ^  Therefore,  where,  by  a  State 
statute,  judgments  in  ejectment,  except  of  non-suit,  are  a  bar  to 
a  subsequent  action  for  the  same  property  between  the  same  par- 
ties and  those  claiming  under  them,  it  is  held  that  such  enact- 
ment is  alike  binding  on  national  and  State  courts  in  such  State.* 
The  State  court  constructions  of  State  laws,  it  was  decided  in  an 
early  and  leading  case,  would  be  followed  in  the  United  States 

>  Miles  V.  Caldwell,  2  Wall.  85,  43,  Sheldon,  7  How.  812;  Suydam  v.  Wil- 

44;  Christy  v.  Pridgeon,  4  Wall.  196,  liamson,  24  How.  427,  433;  1  United 

203;  Shelby  v.  Guy,  11  Wheat.  361;  States  Stat,  at  Large,  92;    Original 

Sneed  v.  Wister.  8  Wheat.  690;   El-  Judiciary  Act,  §  34. 

mendorf  v.  Taylor,   10  Wheat,  152;  « Miles  v.  Caldwell,  2  Wall.  85,43, 

McClunyc.  Silliman,  3Pet.270;  Hen-  44;  Brine  v.  Insurance  Co.,  6  Otto, 

derson  v.  Griffin,  5  Pet.  151 ;  Green  v.  627 ;  Orvis  v.  Powell,  2  Chicago  Law 

Neal's  Lessee,  6  Pet.  291,  298;  Steam-  Journal,  190,  (Oct.  Term  U.  S.  Sup. 

boat  Orleans  v.  Phoebus,  11  Pet.  175;  Ct  1878.) 
Ross  V.  Duval,  13  Pet.  45 ;  Nesmith  «. 


LOCAL    RULES    OF    LAW.  85 

courts.'  The  same  has  often  been  decided  as  to  State  court  con- 
structions of  their  own  constitutions.  ^  So,  where  the  decisions 
of  the  State  courts  have  been  long  acquiesced  in,  and  form  an 
established  rule  of  property,  they  will  be  followed  by  the  federal 
courts.  3  On  questions,  however,  which  do  not  involve  the  con- 
struction of  local  laws,  but  which  relate  to  the  construction  of 
instruments,  such  as  deeds  and  wills,  the  federal  courts  do  not 
feel  bound  by  the  State  decisions.'*  So,  it  has  been  decided  that 
in  the  construction  of  State  statutes  of  limitations,  the  State  de- 
cisions would  be  followed, 5  as  well  as  on  the  construction  of  rules 
of  evidence  based  on  State  laws.^  If  the  decisions  of  the  State 
court  have  been  conflicting  and  changeable,  the  last  decision  is 
generally  followed,  unless  a  previous  decision  of  the  State  court 
should  already  have  been  adopted  by  the  federal  courts.'''  In 
Shelby  V.  6^iiy,  Justice  Johnson  says:  "That  the  statute  laws 
of  the  States  must  furnish  the  rule  of  decision  of  this  court  as 
far  as  they  comport  with  the  Constitution  of  the  United  States, 
in  all  cases  arising  within  the  respective  States,  is  a  position  that 
no  one  doubts.  Nor  is  it  questionable  that  a  fixed  and  received 
construction  of  their  respective  statute  laws,  in  their  own  courts, 
makes,  in  fact,  a  part  of  the  statute  law  of  the  country,  however 
we  may  doubt  the  propriety  of  that  construction.  It  is  obvious 
that  that  admission  may  at  times  involve  us  in  seeming  incon- 
sistencies, as  where  States  have  adopted  the  same  statutes,  but 
their  courts  difter  in  their  construction.  Yet  that  course  is 
necessarily  indicated  by  the  duty  imposed  on  us,  to  administer,  as 
between  certain  individuals,  the  laws  of  the  respective  States, 
according  to  the  best  lights  we  possess,  of  what  those  lights 
arc."" 

1  Luther  v.  Borden,  7  How.  1.  U.  S.,  18  Wall.  71 ;  Pine  Grove  v.  Tal- 

2  Secombe  v.  Railroad  Co.,  23  Wall,      cott,  19  Wall.  666. 

108 ;  Gut  V.  The  State,   9  Wall.  35 ;  « Leffingwell  v.  Warren,  2   Black, 

Randall  v.  Brigham,  7  Wall.  523 ;  Web-  599 ;  Tioga  R.  R.  Co.  v.  Blossburg  & 

ster  V.  Cooper,  14  How.  488.  Corning  R.  R.  Co.,  20  Wall.  137. 

«  Chicago  V.  Robbins,  2  Black,  418;  «  Ryan  v.  Bindley.  1  Wall.  66. 

Williams  v.  Kirtland,  13  Wall.  306;  'Leffingwell  v.  Warren,  2   Black, 

Nichols  V.  Levy,  5  Wall.  433 ;  Jack-  599.    See,  also,  Gelpcke  v.  Dubuque, 

son  V.  Chew,  12  Wheat.  153.  1  Wall.  175. 

*Lane  v.  Vick,  3  How.  464;  Fox-  "Shelby  v.  Guy,   11   Wheat.  367; 

croft  V.  Mallett,  4  How.  353;  Chicago  Bank  of  Hamilton  v.  Dudley,  2  Pet. 

D.   Bobbins,  2  Black,  418;  Venice  v.  492. 
Murdock,  2  Otto,  494 ;  Supervisors  v. 


86  EULES    OF    PROPERTY    AND    RIGHT. 


II.    Blind  Conformity  to  State  Ruungs  not  Eequired  of 
United  States  Courts. 

But  the  courts  of  the  United  States  are  not  absolutely  bound 
to  follow  or  defer  to  the  State  court  construction  of  State  Con- 
stitution and  laws  by  a  blind  conformity  thereto,  although  many 
dicta  are  to  be  found  to  that  effect.*  On  the  contrary,  the  fed- 
eral reports  show  many  cases  of  exception  to  the  rule.  "Wliere 
there  is  a  settled  construction  of  the  laws  of  a  State  by  its  high- 
est court,  and  such  construction  has  become  an  established  pre- 
cedent, it  is  the  practice  of  the  national  courts  to  accept  and 
adopt  it;  but  where  the  United  States  court  lias  first  decided  the 
question,  it  will  not  feel  bound  to  retrace  its  course  and  surrender 
its  judicial  conviction  by  reason  of  a  subsequent  contrary  State 
court  decision.* 

When  State  court  decisions  are  erratic  or  inconsistent,  the  fed- 
eral court  is  not  disposed  to  follow  the  last,  if  contrary  to  its  own 
convictions. 3  In  the  case  of  Pease  v.  Peck,  the  United  States 
Supreme  Court,  Squier,  J.,  say:  "And  much  more  is  this  the 
case  where,  after  a  long  course  of  consistent  decisions,  some  new 
light  suddenly  springs  lip,  or  an  excited  public  opinion  has 
elicited  new  doctrines  subversive  of  former  safe  precedent.  Cases 
may  exist,  also,  when  a  cause  is  got  in  a  State  court  for  the 
very  purpose  of  anticipating  our  decision  of  a  question  known 
to  be  pending  in  this  court.  Nor  do  we  feel  bound,  in  any 
case  in  which  a  point  is  first  raised  in  the  courts  of  the  United 
States,  and  has  been  decided  in  a  Circuit  Court,  to  reverse 
that  decision,  contrary  to  our  own  convictions,  in  order  to  con- 
form to  a  State  decision  made  in  the  meantime.  Such  decisions 
have  not  the  character  of  established  precedent  declarative  of  the 
settled  law  of  a  State."* 

'  Pease  v.  Peck,  18  How.  595.  •  Morgan  v.  Curtenius,  20  How.  1. 

»  Pease  v.  Peck,  18  How.  595;  Lef.  *  18  How.  598,  599.    See,  also,  Mor- 

fingwell   V.  Warren,    2  Black,  599 ;      gan  v.  Curtenius,  20  How.  1. 
Gelpcke  v.   Dubuque,   1  Wall.  175; 
Chicago  V.  Robbins,  2  Black,  418. 


ACTIONS    AND    SUITS    ON    JUDGMENTS.  87 


CHAPTER  X. 

ACTIONS   AND    SUITS    ON   JUDGMENTS   AND   DECREES. 

I.    Actions  on  Judgments  of  Other  States. 
II.    Actions  on  Deckees  op  Other  States. 

III.  Action  in  State  Court  and  United  States  Court,  on  Judgments 

OF  Either. 

IV.  Action  on  Conditional  Judgments. 
V.    Action  on  Joint  Judgment. 

VI.  Action  on  Judgment  on  Penal  Bond. 

VII.  Competency  op  the  Record  as  Evidence. 

VIII.  Change  op  State  Sovereignty. 

IX.  Judgments  and  Decrees  in  Proceedings  In  Rem. 

X.  Defenses  to  Suits  on  Judgments. 

I.     Actions  and  Suits  on  Judgments  of  Other  States. 

State  Court.  Actions  and  suits  will  lie  in  the  courts  of  a  State 
upon  personal  judgments  and  decrees  of  the  courts  of  another 
State  for  a  fixed  sum  in  money,  where  the  court  rendering  the 
same  had  obtained  jurisdiction  of  the  defendant  in  such  judg- 
ment ;i  and  so  as  to  Territories  of  the  United  States.^ 

Courts  Take  Notice  of  New  States.  And  where  a  new  State  is 
created  by  division  of  an  old  one,  the  courts  take  notice  thereof  ^ 
and  recognize  such  judgments  and  decrees,  when  certified  and 
authenticated  by  the  authorities  of  the  new  State  having  the  cus- 
tody of  the  record  thereof.^ 

Judgments  for  money  being  debts  of  record  of  the  highest 
grade,  actions  at  law  will  lie  thereon  whether  they  be  judgments  of 
the  same  State,  or  of  a  different  State,  or  of  a  court  of  the  United 

'  Pennington  «.  Gibson,  16  IIow.  65;  ■».  Finch,  28  Conn.  112;  Freeman  on 

Nation  v.  Jolinson,  24  How.  195 ;  Dar-  Judgments,  §  432. 
rail  V.  Watson,  36  Iowa,  116 ;  Danfortli  ^  Ibid. 

V.  Tliompson,  34  Iowa,  243;  Wood-  3£)arrah  v.  Watson,  36  Iowa,  116, 

ward  V.  Willard,  33  Iowa,  542;  Den-  118;  Gilbert  v.  Moline  Water  Power 

nison  v.  Williams,  4  Conn.  402;  Ives  &  Manf.  Co.,  19  Iowa,  319. 

■»  Darrah  v.  Walson,  36  Iowa,  116. 


88  ACTIONS    AND    SUITS    ON    JUDGMENTS. 

States;  and  this,  too,  notwithstanding  the  plaintiff  might  have  a 
remedy  by  execution,  or  otlicrwise,  in  the  court  wliere  rendered. ^ 
Thus,  an  action  will  lie  in  a  State  court  upon  a  judgment  of  a 
United  States  Court  for  the  same  district  in  which  the  State  is 
situated.' 

Judgment  Against  Non-Kesident.  And  although  the  defend- 
ant in  a  judgment  sued  on  was  not  an  inhabitant  of  the  State 
when  and  where  the  suit  was  brought,  and  in  which  judgment 
was  rendered  against  him,  yet  whether  an  inhabitant  or  not,  if 
personally  served  with  the  original  process  in  such  suit,  and 
within  the  territorial  jurisdiction  of  the  co'^rt,  or  if  he  volunta- 
rily appears  to  the  same,  he  thereby  becomes  personally  subject 
to  the  jurisdiction  and  such  judgment  is  a  valid  cause  of  action 
in  another  State,  unless  impeached  in  some  manner  allowed  by 
law.'  Thus,  if  there  be  service  without  appearance,  or  appear- 
ance without  service,  jurisdiction  of  the  person  attaches,  and  a 
judgment  in  personam  is  valid  if  by  a  court  of  general  jurisdic- 
tion, and  such  judgment  will  be  treated  in  the  courts  of  others 
of  the  States  as  entitled  to  full  faith  and  credit  under  the  United 
States  Constitution  and  laws,  when  so  authenticated  as  to  bring 
it  within  their  provisions.*  And  though  the  service  be  insuffi- 
cient  in  manner,  yet  if  received  and  acted  on  as  service  by  the 
court,  it  is  mere  matter  of  error  and  not  of  invalidity,  and  is 
binding  until  reversed  or  set  aside.'     The  authorities  here  cited 

•  Pennington  «.  Gibson,  16  How.  65 ;  is  pending,  or  to  be  brought.    Bates 

Houghton  V.  Raymond,  1  Sandf.  682;  v.  The  Chicago  &  N.  W.  R.  R.  Co.,  19 

McGuire  B.Gallagher,  2  Sandf.  402;  Iowa,  260;   Darrance  t.  Preston,  18 

Church  ■».  Cole,  1  Hill,  645;  Burton  ©.  Iowa,  396;  Lawrence  r>.  Jarvis,  32  111. 

Stewart,  11  Ind.  238 ;  Ames  c.  Hoy,  13  30 ;  Freeman  on  Judgments,  §§  564, 

Cal.  11 ;  Canfleld  v.  Miller,  13  Gray,  566. 

274;  White  River  Bank  v.  Downer,  *  Woodward  «.  Willard,  83  Iowa, 

29  Vt  332 ;  Chandler  t>.  Warren,  30  Vt.  543, 549 ;  Mayhew  ».Thatcher,6  Wheat. 

510;  Freeman  on  Judgments,  §  433.  129;  Lafayette  Ins.  Co.  v.  French,  18 

'  Davidson  n.  Nebaker,  21  Ind.  334.  How.  404;  Freeman  on  Judgments,  § 

sDarrah  «.  Watson,  36  Iowa,  116;  566. 

Bissell  v.  Briggs,  9  Mass.  462;  Dan-  *  Woodward  c.  Willard,  33  Iowa, 

forth  «.  Thompson,  34    Iowa,  243;  543,  549;  Milne  v.  Van  Buskirk,  9 

Woodward  c.  Willard,  33  Iowa,  542.  Iowa,  558;  Bonsall  v.  Isett,  14  Iowa, 

But  jurisdiction  of  defendant's  per-  309;  Johnson  v.  Butler,  2  Iowa,  535; 

son,  so  as  to  justify  the  rendering  of  Moore  c.  Parker,  25  Iowa,  355;  Holt 

a  personal  judgment,  cannot  be  had  c.  Alloway,  2  Blackf.  108;  Cooper  t;. 

by  service  of  a  process  mi  him  in  a  Reynolds,  10  Wall.  308;  Aldrich  t. 

different  State  than  where  the  action  Kinney,  4  Conn.  308;  Smith  v.  Smith, 


ACTIONS    ON    JUDGMENTS    OF    OTHER    STATES.  SO 

are  none  the  less  in  point,  from  the  fact  that  the  decisions,  in 
many  of  the  cases,  were  made  in  the  courts  of  the  same  State 
wlierein  the  judgments  brought  in  question  were  rendered;  for 
under  the  constitution  and  laws  of  the  United  States,  as  we  have 
hereinbefore  seen,  judgments  are  entitled  to  the  same  force  and 
effect  in  other  States  as  they  attain  where  rendered. 

Judgment  Satisfied  or  Reversed.  Wliere  a  judgment  is  ob- 
tained in  a  court  of  a  State  on  a  judgment  of  another  State,  and 
is  paid  by  the  defendant,  and  the  judgment  of  the  other  State  is 
afterwards  reversed  or  set  aside,  in  such  case  a  right  accrues  to 
the  judgment  debtor  in  the  judgment  so  paid  to  have  refunded 
the  amount  so  paid,  and  an  action  will  lie  therefor,^ 

If  the  payment  be  by  a  third  party  who  is  obligated  to  save 
the  defendant  harmless  against  the  same,  then  the  same  right 
accrues  to  such  third  party.  ^ 

In  sucli  cases,  of  suit  for  the  same,  the  right  of  action  will  be 
held,  on  a  plea  of  the  statute  of  limitations,  to  have  accrued  at 
the  time  of  the  reversal  or  vacation  of  the  original  judgment, 
and  not  at  the  date  of  payment  of  tlie  judgment  rendered 
thereon.  3 

Judgment  Still  Pending  When  a  Bar  to  an  Action  on  the  Orig- 
inal Demand.  When  a  valid  judgment  has  been  obtained  in  one 
State  which  is  unsatisfied,  and  which  the  judgment  debtor  has 
not  attempted  to  avoid,  a  suit  on  the  original  demand  in  another 
State  it  has  been  held  would  be  barred  if  the  defendant  pleaded 
the  judgment.'* 

Action  on  Informal  Judgment.  In  actions  on  judgments  of 
another  State  wherein  technical  forms  of  action  are  abolished, 
and  where  the  records  of  the  judgments  sued  on  come  duly 
authenticated  according  to  the  acts  of  Congress,  the  courts  will 
regard  such  judgments  as  of  the  same  force  as  accorded  to  them 
in  the  State  where  rendered,  regardless  of  any  want  of  conformity 
to  the  uses  and  forms  of  the  common  law.^ 

Conclusiveness  of  Judgments.    Judgments  of  other  States  are 

17  111.  482;  White  v.  Merritt,  7  N.  Y.  ^jyiann  v.  ^tna  lus.  Co.,  38  Wis. 

352.  114;  5.  C,  40  Wis.  549. 

^  ^tna  Ins.  Co.  v.  Alclricli,  38  Wis.  *  Henderson  v.  Staniford,  105  Mass. 

107.  504. 

•^  ^tna  Ins,  Co.  v.  Aldrich,  38  Wis,  » Griffin  v.  Eaton,  27  III.  379, 
107.    See,  also,  Mann  v.  .^tna    Ins. 
Co.,  40  Wis.  549. 


90  ACTIONS    AND    SUITS    ON   JUDGMENTS. 

conclusive  of  the  matter  therein  adjudicated  as  well  when  od 
default,  if  there  was  service,  as  in  other  cases;^  and  pleas  merely 
questioning  the  right  of  the  original  recovery  are  of  no  validity 
to  an  action  on  the  judgment  of  another  State — nor  pleas  setting 
up  fraudulent  recovery,  as  affecting  tlie  adjudication  of  the  court 
in  rendering  the  judgment,  as  that  the  judgment  was  obtained 
by  fraud.  Such  defenses  cannot  be  collaterally  sustained,  if  there 
was  service,  so  as  to  fix  jurisdiction  of  the  court  as  to  the  per- 
son of  the  defendant.  2 

ESect  of  Appeals.  State  Construction  Conformed  to.  In  a 
suit  upon  a  judgment  of  another  State,  the  court  wherein  the 
suit  is  proceeding  will  give  the  same  effect  to  an  appeal  or  writ 
of  error  from  the  judgment  sued  on,  taken  therefrom  in  the  State 
where  rendered,  as  is  given  by  the  laws  of  such  State.  When 
such  effect  is  ascertained  it  is  the  duty  of  the  court  where  the 
judgment  is  sued  on  to  allow  the  same  result  there ;3  and  the  con- 
struction put  upon  the  statute  or  laws  of  a  State  by  its  own  courts 
will  be  conformed  to  in  construing'  these  laws  in  the  courts  of 
other  States,  and  accordingly  enforced  when  brought  in  question 
therein ;  imless  the  efiect  would  be  to  violate  the  rights  of  its  own 
citizens,  or  the  settled  policy  of  the  State.* 

Dormant  Judgment.  Revival  of  Scire  Facias.  Though  an 
action  will  not  lie  in  the  courts  of  one  State  on  a  judgment  of  a 
court  of  another  State  which  is  dormant^  yet  if  the  dormant 
■judgment  be  revived  by  scire  facias  it  is  then  so  reinstated 
that  suit  thereon  may  be  maintained,  and  therefore  may  be  main- 
tained in  another  State.  ^ 

If  in  the  State  where  rendered  the  time  limited  for  revival  by 

'  Kinnier  v.  Kinnier,  45  N.  Y.  535;  *  Norwood  t.  Cobb.  20  Tex.  588. 

Xorwood  V.  Cobb,  20  Tex.  588 ;  Cherry  »  Cherry  ».  Speight,  28  Tex.  503,  518 ; 

c,  Speight,  28  Tex.  503 ;  Freeman  on  Shelton  v.  Marshall,  16  Tex.  344.   See, 

Judgments,  ^  560,  et  seq.    But  the  rec-  however,  where  the  contrary  rule  is 

ord  of  such  judgment  may  be  con-  held.    Bankc.  Wheeler,  28  Conn.  433; 

tradicted  as  to  facts  necessary  to  give  Taylor  v.  Shew,  39  Cal.  536;  Faber  v. 

the  court  jurisdiction,  and  if  it  be  Ilovey,   117  Mass.  107;    Merchants' 

shown  that  such  facts  did  not  exist,  Ins.  Co.  v.  De  Wolf,  9  Casey,  45 ;  Free- 

the  record  will  be  a  nullity  notwith-  man  on  Judgments,  §  576. 

standing  it  may  recite  that  they  did  *  Powell  v.  De  Blane,  23  Tex.  66. 

exist.    See  Marx  v.  Fore,  51  Mo.  569 ;  *  Morton  v.  Valentine,  15  La.  Ann. 

Hoffman  «.  Hottman,  46  N.  Y..  30;  150. 
People  V.  Dawell,  25  Mich,  247. 


ACTIO]S'"S    OlSr    JUDGMENTS    OF    OTHER    STATES.  91 

sci7'e  facias  expire,  and  proceedings  for  revival  be  thereafter  insti- 
tuted and  limitation  be  not  pleaded,  then  judgment  of  revivor 
avoids  the  statute  of  limitation,  and  the  statute  begins  to  run 
against  the  new  or  revived  judgment  only  from  the  date  thereof.^ 
Therefore,  it  is  held  that  if  suit  be  brought  in  a  different  State  on 
the  revived  judgment,  then  for  defendant  to  avail  himself  of  the 
plea  of  limitation  as  resting  on  the  statute  of  the  forum,  the 
length  of  time  required  as  a  bar  by  that  statute  must  have  run 
between  the  day  of  the  rendition  of  the  judgment  of  revival  and 
the  day  of  the  commencement  of  the  suit,^  If,  on  the  other 
hand,  the  law  of  the  State  where  suit  is  brought  allows  the  plead- 
ing of  the  statute  of  the  State  where  the  judgment  was  rendered 
as  a  bar  to  the  action  when  the  time  limited  therein  has  fully  run^ 
then,  although  that  time  may  have  run  as  to  the  original  judg- 
ment, yet  when  the  judgment  sued  on  has  been  so  revived, 
then  as  to  the  revived  judgment  the  statute  of  the  State  where 
rendered  only  runs  from  the  revival  thereof,  and  to  avail  defend- 
ant of  that  statute  the  full  time  required  in  that  State  must  have 
run  between  the  time  of  judgment  of  revival  and  commencement 
of  the  suit  thereon.  3 

Action  on  Bastardy.  Judgment  of  another  State.  It  is  held, 
in  Indiana,  that  an  action  of  debt  will  lie  on  the  judgment  of  an 
Ohio  court  in  a  case  of  bastardy,  adjudging  the  defendant  therein 
to  pay  a  sum  certain  in  installments,  and  in  default  of  payment 
giving  execution  for  the  support  of  the  defendant's  illegitimate 
child.  The  ruling  thus  is  predicated  on  the  fact  of  the  Ohio  and 
Indiana  statutes  on  the  subject  being  alike,  this  being  shown  by 
pleading  and  proving  the  statute  of  Ohio.^  This  ruling  was  on 
demurrer.  In  the  same  case  the  action  was  defeated,  however,. 
on  the  ground  of  a  failure  to  show  in  the  declaration  any  right 
of  the  plaintiff  to  receive  the  money  sued  for  as  guai'dian  or 
otherwise.'' 

Jurisdiction,  Inquiry  into.  But  although  inquiry  may  be 
made  into  the  jurisdiction  of  the  court  rendering  the  judgment 
sued  on  in  an  action  on  a  judgment  of  a  court  of  another  State, 

'  Morton  v.  Valentine,  15  La.  Ann.  ^  Morton  t.  Valentine,  15  La.  Ann. 

150.  150. 

2  Morton  c.  Valentine,  15  La.  Ann.  ^  Stanfield  «.  Fetters,  7  Blackf.  558. 

150;  Orman  «.  Neville,  14  La.  Ann.  ">  Ibid. 
393. 


92  ACTIONS    AND    SUITS    ON   JUDGMENTS. 

where  nothing  appears  either  way  in  the  record  as  to  service  on 
or  jnristliction  of  the  person  of  the  defendant,  yet  this  cannot  be 
done  in  such  action  on  a  judgment  of  a  court  of  general  juris- 
diction, the  record  of  which,  duly  authenticated,  shows  service 
upon  the  defendant.^ 

Judgments  of  Justices  of  the  Peace.  In  some  of  the  United 
States  such  judgments  have  all  the  force  and  effect  of  judgments 
of  courts  of  record.  They  are  not  open  to  collateral  attack  and 
are  considered  as  absolute  verity.'  Suits  upon  them,  in  those 
States,  are,  therefore,  governed  by  the  same  rule  as  applies  to 
foreign  judgments  of  courts  of  record.  As  a  general  thing,  how- 
ever, justice  judgments  are  not  so  considered.  Being  rendered 
by  courts  of  only  local  and  very  limited  and  prescribed  jurisdic- 
tion, having  no  clerk  nor  seal,  they  are  not  governed  by  the  act 
of  Congress  which  provides  for  the  authentication  of  judicial 
records  and  proceedings.  Their  effect,  therefore,  in  other  States, 
would  seem  to  be  the  same  as  that  accorded  judgments  rendered 
by  foreign  countries.  They  must  be  shown  to  have  been  rendered 
by  courts  having  jurisdiction  over  the  parties  and  subject  matter, 
to  have  been  authorized  by  the  laws  of  the  State  where  rendered. 
The  judgment  itself  must  be  proved  as  a  fact  like  a  foreign  judg- 
ment.' 

II.    Actions  on  Decrees  of  other  States. 

Same  as  on  Judgments  at  Law.  Decrees  of  courts  of  chancery 
for  the  payment  of  money  made  with  full  jurisdiction  of  the 
pai'ties  are  of  the  same  dignity  and  binding  force  as  judgments 
at  law;  and  actions  and  suits  thereon  may  be  maintained  accord- 
ingly. Hence  an  action  at  law  lies  in  the  United  States  circuit 
court  on  a  decree  for  money  made  by  a  State  court,  where  the 

>  Wescott  V.  Brown,  13  Ind.  83 ;  Hall  •  Farr  v.  Ladd,  37  Vt.  158 ;  Billings 

e.  Williams,  6  Pick.  232;  Shumway  v.  Russell,  23  Peun.  St.  191;  Fox  v. 

V.  Stillman,  6  Wend.  447;  Welch  v.  Hoyt,  12  Conn.  497;  Turner  r.  Ireland, 

Sykes.  3  Gilm.  197;  Lincoln  t).  Tower,  11  Humph.  447;  Stevens  v.  Mangum, 

2'McL.  473;  Roberts  v.  Caldwell,  5  27  Miss.  481. 

Dana,  512 ;  Newcomb  v.  Peck,  17  Vt.  »  Carpenter  v.  Pike,  30  Vt.  81 ;  Kean 

302;  Westervelt  v.  Lewis,  2  McL.  511;  e.  Rice,  12  S.  «&  R.  203;  Danforth  t. 

Mills  t?,  Duryee,  7  Cranch,  481 ;  Free-  Thompson,  34  Iowa,  243;  Greenleaf 

man  on  Judgments,  §  560  et  seq.,  where  on  Evidence,  §  513. 
this  subject  will  be  found  discussed 
and  many  cases  thereon  cited. 


ACTIONS  ON  DECREES  OF  OTHER  STATES.      9H 

amount  in  controversy  and  the  citizenship  of  the  parties  thereto 
are  such  as  to  ordinarily  confer  jurisdiction  on  the  United  States 
circuit  court.  It  follows,  as  a  legal  conclusion  therefrom,  that 
wherever  a  judgment  at  law  is  conclusive  as  a  record  as  a  cause 
of  action,  a  decree  in  chancery  is  of  equal  validity  for  that  pur- 
2:)0se,i  ^nd,  therefore,  actions  are  maintainable  in  one  State  on 
decrees  in  chancery  of  another  State,  authenticated  as  by  the  act 
of  Congress  is  required. 2 

Whatever  doubts  may  have  formerly  existed  upon  this  subject 
the  modern  rulings  of  the  courts,  both  State  and  N^ational,  have 
set  at  rest,  and  in  so  doing  have  but  conformed  to  prevailing 
English  doctrines  on  the  subject.  ^  In  the  case  here  cited  the 
Supreme  Court  of  the  United  States,  Daniel,  J.,  say:  "We  lay 
it  down,  therefore,  as  the  general  rule,  that  in  every  instance  in 
which  an  action  of  debt  can  be  maintained,  upon  a  judgment  at 
law,  for  a  sum  of  money  awarded  by  such  judgment,  the  like 
action  can  be  maintained  upon  a  decree  in  equity  which  is  for  an 
ascertained  and  specific  amount,  and  nothing  more;  and  that  the 
record  of  the  proceedings  in  the  one  case  must  be  ranked  with 
and  responded  to  as  of  the  same  dignity  and  binding  obligation 
with  the  record  in  the  other."*  So,  that  a  bill  in  equity  will  lie 
to  enforce  a  decree  for  money,  of  the  same  court  or  different 
court,  has  ever  been  recognized  as  a  correct  principle  in  courts 
of  equity.''  Therefore,  not  only  an  action  at  law  will  lie  in  one 
State,  as  we  have  seen,  upon  a  money  decree  of  a  court  of  another 
State,  but  it  follows  that  a  bill  in  equity  will  lie  in  the  court  of  a 
State  or  United  States  upon  a  decree  of  a  court,  either  Federal 
or  State,  rendered  in  another  State,  provided  the  citizenship  of 
the  parties  to  the  bill  (if  in  the  Federal  court)  be  such  and  the 
amount  in  controversy  be  such  as  in  these  respects  to  confer 
jurisdiction  upon  the  court. ^ 

The  case  here  cited  originated  in  the  District  court  of  the 
United  States  for  the  northern  district  of  Iowa,  upon  a  decree 
of  the  Circuit  court  of  Grayson  county,  in  the  State  of  Ken- 
tucky, by  certain  of  the  heirs  and  distributees  of  John  Golds - 

'  Pennington  v,  Gibson,  16  How.  65 ;  ^  Pennington  v.  Gibson,  16  How.  65. 

Nations  v.  Jolinson,  24  How.  195,  203 ;  *  Ibid. 

Evans  v.  Tatem,  9  S.  &  R.  252;  War-  "  Shields  v.  Thomas,  18  How.  253, 

ren  v.  McCarthy,  25  111.  95.  262. 

'  Cases  above  cited.  *  Ibid. 


94  ACTIONS    AND    SUITS    ON    JUDGMENTS. 

burj^,  deceased,  for  an  accoimting  for  the  proceeds  of  said 
Ooldsbury's  estate.  A  decree  was  made  in  favor  of  the  com- 
2)lainants  in  a  court  of  Kentucky,  and  upon  tliat  decree  the  suit 
was  brought  in  the  United  States  District  court  (then  exercising 
circuit  court  jurisdiction)  for  the  district  of  Iowa.  The  court 
decreed  in  favor  of  complainants  and  the  case  went  thence  to  the 
Supreme  Court  of  the  United  States,  which  affirmed  the  decree. 
It  being  objected,  in  said  cause,  that  a  bill  in  equity  would  lie 
upon  a  decree,  the  court  said,  Daniel,  J.:  "Among  the  original 
and  undoubted  powers  of  a  court  of  equity  is  that  of  entertain- 
ing a  bill  filed  for  enforcing  and  carrying  into  effect  a  decree  of 
the  same  or  of  a  different  court,  as  the  exigencies  of  the  case  or 
the  interests  of  the  parties  may  require."  ^ 

Decrees,  as  well  as  judgments  of  a  final  character,  of  courts 
of  the  United  States  and  of  courts  of  the  several  States,  where 
jurisdiction  has  fully  attached,  are  binding  and  conclusive  upon 
parties  and  privies  until  satisfied,  superseded,  set  aside  or  reversed, 
in  all  other  courts.  State  and  Federal,  wherein  they  come  in  ques-' 
tion  in  a  legitimate  course  of  inquiry,  properly  verified  or 
authenticated.* 

III.    Actions  in  State  and  United  States  Courts  on 
Judgment  of  Either. 

An  action  will  lie  in  a  State  court  upon  a  judgment  of  a  United 
States  court;  and  so,  in  a  United  States  court,  on  a  judgment  of 
a  State  court,  the  parties  being  of  the  proper  qualification  as  to 
jurisdiction,  and  the  matter  in  controversy  being  of  the  required 
amount  to  authorize  jurisdiction ;3  and  in  such  actions  nothing 
adjudicated  in  the  rendition  of  the  judgment  can  be  readjudi- 
cated.  If  jurisdiction  of  the  person  of  defendant  is  attached,  the 
correctness  of  the  recovery  is  not  open  to  question  when  the  judg- 
ment is  sued  on,  for  these  State  and  United  States  courts  are  not 
foreign  to  each  other,  although  their  localities  or  foi^ina  be  in 
different  States.* 


•  18  How.  262.  Barney  tj.  Patterson,  6  Harr.  «&  J.  182 ; 

«  Kittredge  v.  Emerson,  15  N.  H.  Reed  v.  Ross,  1  Bald.  38 ;  St.  Albans  c. 

227.  Bush.  4  Vt. -58. 

»  Thomson  c.  Lee  Co.,  22  Iowa,  *  Thomson  v.  Lee  Co.,  22  Iowa,  206. 
206;  Niblet  v.  Scott,  4  La.  Ann.  245; 


CONDITIONAL    AND    INTERLOCUTORY    JUDGMENTS.      95 


ly.    Action  on  Conditional  and  Interlocutoey  Judgments. 

On  Conditional  Judgment.  An  interlocutory  or  conditional 
judgment  will  not  sustain  an  action  in  another  State,  as  where 
its  validity  for  enforcement  by  execution  depend  upon  something 
subsequently  to  be  done;  as  where  a  judgment  is  rendered  against 
a  surety  in  an  appeal,  under  a  statute  providing  therefor,  and 
which  statute  required  that  to  render  such  surety  liable  for  the 
judgment,  execution  must  go  against  the  principal  within  thirty 
days,  or  within  a  given  time,  then  such  statutory  regulation  not 
being  enforcible  in  another  State,  no  regard  can  therein -be  had 
to  the  same,  so  as  to  carry  out  its  provisions;  and  to  render  a 
judgment  as  at  common  law  would  be  to  give  to  the  judgment 
greater  force  than  it  is  entitled  to  where  originally  rendered ;  there- 
fore, no  judgment  can  be  entered  thereon  in  another  State,  either 
statutory  or  at  common  law.^ 

Judgment  on  Penal  Bonds  —  Continued.  A  judgment  upon  a 
penal  bond  for  the  amount  of  the  penalty,  with  leave  to  have 
■execution  for  a  sum  named  as  then  due,  and  the  principal  judg- 
ment to  stand  as  security  for  other  installments  of  the  same  debt, 
as  they  severally,  from  time  to  time,  became  due,  so  as  then  to 
resume  the  proceedings  and  take  order  of  execution  therefor,  will 
not  maintain  or  support  an  action  of  debt  in  another  State,  when 
from  the  record  it  appears  that  the  first  and  only  installment  as- 
certained and  adjudicated  as  due,  by  the  court  rendering  the  judg- 
ment, has  been  paid.  The  main  judgment  is  but  a  security ;  the 
action  is  not  terminated  as  to  the  subsequently  occurring  liabili- 
ties or  installments,  and  the  court  of  a  different  State  cannot  take 
up  the  proceeding  where  left  off  by  scire  facias  or  otherwise. 
The  real  judgment  in  such  a  proceeding  is  for  the  amount  then 
found  to  be  due,  and  for  nothing  more;  and  that  being  satisfied, 
the  bond  in  all  other  forums^  except  of  the  State  where  such 
judgment  is  rendered,  is  not  merged  in  the  proceeding,  but 
remains  as  it  was  before.^  In  delivering  the  opinion  in  this  case, 
and  after  reviewing  the  whole  subject  with  great  ability,  and  in 

'  Kellam  v.  Toms,  38  "Wis.  592.  This      very  irregular  and   imperfect,  leave 
case  was  decided  on  demurrer  of  de-      was  given  plaintiff  to  amend, 
fendant,  and  the  proceedings  being         '  Dimick  «.    Brooks,  21  Vt.  569 ; 

Pierce  n.  Reed,  3  N.  H.  359. 


96  ACTIONS    AND    SUITS    ON   JUDGMENTS. 

all  its  aspects,  Justice  Redfield  said:  "  It  is  in  vain  to  treat  this 
as  in  any  sense  a  judgment  importing  an  obligation  upon  which 
to  found  an  action  of  debt.  It  is,  at  most,  an  inchoate  proceed- 
ing —  the  mere  pendency  of  an  action.  It  is  in  no  sense  a  more 
perfect  judgment  than  a  default,  or  judgment  upon  demurrer, 
where  no  damages  have  been  assessed,  and  where  they  rest  in 
pais,  and  depend  upon  proof  to  be  adduced  in  court.  In  such 
case,  which  is  certainly  strojiger  for  the  plaintiff  than  the  present, 
it  would  seem  absurd  to  claim  that  a  court  in  another  State,  or, 
indeed,  any  other  court,  could  perfect  the  judgment.  We  might 
as  well  expect  that  if  a  defendant  leaves  one  State  and  goes  into 
another,  after  the  service  of  process  upon  him,  the  court  of  the 
latter  State  will  take  up  the  proceedings  at  that  very  stage  and 
perfect  the  judgment."  1  In  this  same  connection  the  court  ex- 
pressed great  doubt  if  any  of  the  collateral  undertakings  or  obli- 
gations growing  out  of  judicial  proceedings  in  one  State  can  be 
enforced  in  the  courts  of  another  State,  the  same  being  in  their 
nature  local  to  the /brum  where  created  or  taken,  and,  as  we  may 
here  add,  subject  in  a  measure  to  the  subsequent  rulings  of  the 
same  forum  as  to  their  ultimate  enforcement,  if  not  as  to  their 
final  binding  effect.  As,  for  instance,  as  enumerated  in  the 
opinion  above  referred  to,  proceedings  by  scire  facias,  or  in  debt 
upon  recognizances  of  bail  upon  mesne  process;  suits  against  re- 
ceiptors of  property,  and  on  replevin  bonds  and  against  sheriffs  for 
neglect  of  duty,  and  upon  prison  bonds;  and  the  enforcement  of 
warrants  of  attorney  to  confess  judgment;  and  declares  it  to  be 
clearly  the  law,  that  proceedings  to  enforce  any  of  such  collateral 
liabilities  or  remedies  by  scire  facias  must  be  confined  to  the 
court  M'herein  they  arose;  that  the  remedies  on  all  such  are 
local. 2  And  so  of  interlocutory  judgments.  They  are  not  final, 
and  no  action  can  be  maintained  upon  them.  To  support  an 
action,  the  judgment  must  be  conclusive.' 

V.    Action  on  Joint  Judgment. 

A  joint  judgment,  against  two  or  more  defendants,  rendered 
without  service  on  or  jurisdiction  of  both,  is  incapable  of  being 

'  Dimick  o.  Brooks,  21  Vt.  580.  »  Thorner  v.  Batory,  41  Md.  593 ;  Di- 

«  Dimick  e.  Brooks,  21  Vt.  569,  579,  niick  v.  Brooks,  21  Vt  569;  Hanover 

580.    See,  also,  Pickering  c.  Fisk,  6  Fire  Ins.  Co.  o.  Tomlinson,  6  Thomp. 

Vt.  102.  &  C.  (N.  Y.)  127 ;  S.  0.,  3  Hun.  630 


ON  A  JUDGMENT  ON  A  PENAL  BOND.        97 

enforced  by  an  action  in  another  State.  ^  At  least  so,  if  there  be 
no  showing  that  the  law  of  the  State  where  the  judgment  was 
rendered  tolerated  the  rendering  of  such  a  judgment.  ^  So,  on 
the  other  hand,  a  joint  judgment  of  another  State  against  several 
defendants,  when  the  record  states  that  service  was  had  on  each, 
will  not  sustain  an  action  against  one  alone  of  the  defendants 
therein,  there  being  nothing  stated  in  the  petition  or  declaration 
as  a  reason  for  proceeding  against  but  one;^  but  where  joint 
judgment  debtors  are  resident  in  different  States,  an  action  on 
such  judgment  may  be  maintained  against  each  of  them  sepa- 
rately by  averring  and  showing  such  residence.* 

YI.     Actions  on  a  Judgment  Rendered  on  a  Penal  Bond. 

The  case  of  Battey  v.  Holhrook  was  an  action  brought  in  a 
court  of  Massachusetts  on  a  judgment  of  the  circuit  court  of  the 
United  States  for  the  district  of  Rhode  Island.  The  judgment 
in  Rhode  island  was  rendered  upon  a  penal  bond,  conditioned  for 
the  payment  of  an  annual  sum  for  support  of  a  wife,  where  the 
parties  had  separated,  which  was  payable  to  a  trustee  as  obligee 
of  the  bond.  Upon  breaches  to  a  part  of  the  payments  suit  was 
brought,  and  judgment  obtained  for  the  penalty  of  the  bond,  as  se- 
curity for  both  the  future  and  past  breaches,  with  judgment  of  exe- 
cution for  the  amount  found  due  and  therein  specified  for  past 
breaches ;  the  formal  judgment  for  the  penalty  to  stand  good  for 
future  breaches,  and  the  cause  to  remain  in  court,  with  the  right  in 
plaintiff  to  take  orders  of  execution  for  the  amounts  of  future 
breaches  which  might  occur,  upon  scire  facias  against  the  defend- 
ant, to  show  cause  against  the  same.  The  defendant  having  re- 
moved from  the  jurisdiction  of  Rhode  Island  into  Massachusetts, 
was  there  sued  in  the  State  court  upon  the  judgment.  The  courts 
of  Massachusetts  held  that  judgment  could  in  that  State  be  recov- 
ered only  upon  the  effective  part  of  the  judgment  sued  on  — 
only  on  so  much  thereof  as  execution  had  been  awarded  for  in 
the  United  States  circuit  court  where  the  judgment  was  rendered; 
and  that  the  remedy  for  future  breaches  was  by  scire  facias  in 
the  United  States  court,  where  the  cause  was  still  pending.     That 

^  Frothingham  v.  Barnes,  9  R.  I.  «  Knapp  v.  Abell,  10  Allen,  485. 

474 ;  Mervin  ».  Kumbel,  23  Wend.  293 ;  ^  Dart  d.  Goss,  24  Mich.  2G6. 

Oakley  v.  Aspinwall,  4  N.  Y.  514.  «  Brown  tj.  Birdsall,  29  Barb.  549. 
7 


98  ACTIONS    AND    SUITS    ON   JUDGMENTS. 

to  allow  judgment  for  the  penalty  would  be  be  to  oust  the  court 
in  Rhode  Island  of  its  still  pending  jurisdiction,  and  also  would 
give  to  the  plaintiff  on  such  new  judgment  what  he  could  not 
get  by  the  old  —  a  judgment,  without  showing  a  breach,  as  the 
whole  case  could  not  be  transferred  into  the  courts  of  Massachu- 
setts under  any  circumstances. i  Where  the  liability  imposed  by 
a  bond  is  in  the  nature  of  a  penalty,  and  such  bond  is  a  statutory 
one,  an  action  for  the  breach  thereof  is  to  recover  a  penalty,  and 
can  only  be  enforced  in  the  State  enacting  the  statute.' 

VII.     Competency  of  the  Reookd  as  Evidence. 

Appellate  Judgments.  In  an  action  on  a  judgment  of  a  court 
of  another  State,  it  is  no  objection  to  the  record  thereof  as  evi- 
dence, when  duly  authenticated,  that  such  record  embodies  in  it 
the  record  of  a  judgment  of  a  justice's  court,  in  the  same  case, 
rendering  a  judgment,  from  which  an  appeal  was  had  to  the 
court  from  whei.ce  the  record  of  the  judgment  comes,  and  in 
■which  appellate  court  the  judgment  thus  received  and  sued  on 
■was  rendered.' 

Presumption  of  Regularity.  And  where  the  validity  of  such 
judgment,  as  to  form,  is  dependant  on  proof  of  the  manner  of 
practice  and  custom  of  entering  judgments  and  making  up  re- 
cords thereof  in  the  State  from  which  it  comes,  and  nothing  ap- 
pears in  an  appellate  court  as  to  whether  there  was  or  was  not 
proof  thereof  in  the  court  below,  the  presumption  is  that  such 
proof  was  made,  and  therefore  a  judgment  therein  will  be  sus- 
tained when  the  showing  of  such  proof  would  have  authorized 
the  rendering  of  the  judgment  in  the  court  below.* 

Jurisdiction.  In  actions  on  judgments  of  courts  of  other 
States  the  presumption  is,  when  the  record  is  authenticated  as 
provided  by  the  act  of  Congress,  that  the  court  rendering  the 
judgment  in  such  other  State  was  a  court  of  competent  powers, 

'  Battey  «.  Holbrook,  1  Gray,  212;  33  Md.  487;  Bird  o.  Hayden,  1  Rob- 

Dimick  v.  Brooks,  21  Vt.  569.  ert.  391. 

*  Hill  r.  Frazier,  22  Penn.  St.  320;  » Clemraer  t».  Cooper,  24  Iowa,  185. 

Halsey    v.   McLean,  12  Allen,  438;  *  Clemmer  r.  Cooper,  24  Iowa,  185 ; 

Erickson  v.  Nesmitli,  4  Allen,  233;  Taylor  v.  Runyan,  3  Iowa,  474;  8.  C, 

Derrickson  e.  Smith.  8  Dutch.  166;  9  Iowa,  522;  Freeman  on  Judgments, 

Erick.son  v.  Nesmith,  46  N.  H.  371 ;  §  565. 
First  Nat.  Bank  of  Plymouth  v.  Price, 


COMPETENCY    OF    THE    EECORD    AS    EVIDENCE.  99 

in  point  of  jurisdiction,  to  the  subject  matter  thereof,  to  render 
the  same.i  In  Buffum  v.  Stimpson  the  court  say:  "Thei-e  is 
no  validity  in  the  objection,  that  the  court  in  Wisconsin  had 
not  jurisdiction.  The  record  being  properly  authenticated  the 
presumption  is  in  favor  of  the  jurisdiction." 

Admissibility  of  the  Record.  Must  be  Pertinent.  To  enable 
a  record  of  another  State  to  be  used  in  evidence  in  a  judicial 
proceeding  it  must  be  authenticated  as  required  by  the  act  of 
Congress,  or  else  as  required  by  the  laws  of  the  State  wherein  it 
is  sought  to  be  used;  and  conformity  to  the  latter  will  do,  if  not 
inconsistent  with  the  act  of  Congress,  It  cannot  require  more 
than  is  required  by  the  Congressional  act.^ 

But  however  conformable  to  either  the  authentication  may  be, 
yet  to  be  allowable  in  evidence,  the  record  offered  must  be  perti- 
nent to  the  issue.  ^ 

Temporary  Judge.  In  an  action  on  a  judgment  of  another 
State,  in  the  rendition  of  which  a  member  of  the  bar  presided 
as  judge  under  appointment  of  the  regular  judge,  and  during 
his  inability  from  sickness  to  act  as  judge,  a  statute  law  of  such 
State  allowing  such  appointment,  may  be  introduced  in  evidence 
to  prove  the  authority  of  the  pro  tempore  judge  for  acting  as 
Buch.* 

Assignee  as  Plaintiff.  And  when  the  action  on  the  judgment 
is  in  favor  of  an  assignee  thereof  as  plaintiff,  and  by  the  law  of 
the  forura  of  the  pending  trial  assignees  of  judgments  are 
allowed  to  sue  thereon  in  their  own  name,  then  an  assignment  of 
judgment  to  plaintiff  purporting  to  have  been  made  of  record, 
and  by  the  clerk  certified  as  part  of  the  record,  will  be  allowed 
to  go  in  evidence  as  prima  facie  evidence  of  plaintiff's  right  as 
assignee.  "* 

Form  of  Judgment  Not  Questionable.  Sufficiency  as  to  form 
of  foreign  judgment,  when  sued  on  in  the  courts  of  another 
State,  is  not  questionable  in  the  court  where  suit  is  brought. 
Every  court  has  its  own  form  and  is  the  judge  of  the  sufficiency. 

'  Bissell -e.  Wheelock,  11  Cush.  377 ;  »  Qrdway   v.   Conroe,   4   Wis.  59; 

Buffum  t.  Stimpson,  15  Allen,  591 ;  Hacket  «.  Bounell,  16  Wis.  471, 
Nunn  V.  Sturges,  22  Ark.  389 ;  Halli-  ^  Ordway  v.  Conroe,  4  Wis.  59. 

burton  «.  Fletcher,  23  Ark.  453;  War-         *  Walker  ».  Leight,  30  Iowa,  310. 
ren  'o.  McCarthy,  25  111.  95 ;  1  Ameri-         » Ibid. 
can  Leading  Cases,  5th  ed.  647. 


100  ACTIONS    AND    SUITS    ON   JUDGMENTS. 

If  sufficient  where  rendered,  it  is  entitled  to  like  faith  in  other 
States.  1 

Amount  Hecoverable.  But  where  by  the  record  it  appears 
that  part  of  the  judgment  sued  on  has  been  realized  by  execu- 
tion, or  otherwise,  the  recovery  thereon  can  be  had  for  the  unsat- 
isfied balance  only.' 

Execution  Levy  on  Land  is  No  Defense.  But  the  mere  levy 
of  execution  on  land  not  being  in  any  sense  a  satisfaction  of  the 
writ,  it  therefore  does  noteflfect  the  judgment  which  is  the  found- 
ation of  the  writ.  It  results,  from  these  principles,  that  such 
levy,  or  even  levy  and  advertisement  of  lands  for  sale,  is  no  de- 
fense to  an  action  on  a  judgment  of  another  State.' 

VIII.     Change  of   State   Sovereignty  —  Effect   of  on 

Decrees. 

A  decree  for  a  specific  performance  of  a  contract  to  convey  real 
property  situated  in  the  State  where  the  decree  is  made,  will  be 
enforced,  notwithstanding  that  the  locus  in  quo  be,  during  the 
pendency  of  the  suit,  transferred  to,  or  is  annexed  to,  another 
State.  The  court  of  such  other  State  will  execute  the  same,  ujjon 
a  record  of  the  proceedings  being  tiled  therein,  duly  certified  and 
authenticated.'* 

Organization  of  New  State.  So  a  decree  of  a  court  of  chan- 
cery of  the  State  of  Yirginia  of  specific  performances,  as  to 
lands  situated  at  the  time  in  Kentucky,  then  a  part  of  Virginia, 
was  held  to  be  enforcible  after  the  separation  and  organization  of 
Kentucky  into  a  State,  in  a  suit  upon  such  decree,  in  the  circuit 
court  of  the  United  States  for  the  district  of  Kentucky. "^ 

IX.    Judgments  and  Decrees  in  Proceedings  In  Eem. 

No  Action  Sustainable  Thereon.  Judgments  and  decrees 
merely  in  rem  of  courts  of  one  State  will  not  sustain  an  action 
or  suit  against  the  defendant  therein  in  the  courts  of  another 
State.'     They  bind  only  the  thing  or  property  acted  on  bv  them, 

'Grovern.  Grover,30Mo.  400;Mile3  •  Melhop  v.  Doane,  81  Iowa,  397; 

c.  Collins,  1  Met.  (Ky.)  308.  Price  v.  Hickok,  39  Vt.  293;  Jones  v. 

« Arnold  v.  Roraback,  8  Allen,  429.  Spencer,    15    Wis.    583 ;    D'Arcy   v. 

•Field  V.  Sanderson,  34  Mo.  542.  Ketcbura,  11  How.  165;  Pennoyer  v. 

*  Brown  v.  Desmond,  100  Mass.  267.  Neff,  5  Otto,  714. 

•  Caldwell  t>.  Carrington,  9  Pet  86. 


IN    PROCEEDINGS    IN    HEM.  101 

"but  so  far  as  their  effect  concerns  that  property  or  thing,  as  for 
instance  as  evidence  of  riglit  thereto,  they  are  entitled  to  that 
full  faith  and  credit  everywhere  in  courts  of  the  other  States 
which  are  accorded  to  them  in  the  courts  of  the  State  where 
rendered.  If  jurisdiction  in  rem  properly  attach,  they  are  valid, 
however,  as  judgments  in  rem  and  as  evidence  of  what  has  been 
•effected  under  them.^ 

The  levy  binds  the  7'es,  and  so  does  the  judgment  w  rem  that 
follows,  if  one  be  rendered  against  the  res,  but  personal  judg- 
ment without  appearance  or  service  is  invalid. ^ 

Are  Evidence  of  Right  to  Personal  Property.  Judgments  and 
sales  of  personal  property  in  proceedings  in  rem,  against  the 
property  sold,  obtained  and  made  in  one  State,  and  brought  in 
question  judicially  in  another,  though  of.  no  validity  as  personal 
judgments  against  the  defendant  therein,  and  incapable  of  being 
the  bases  of  an  action  or  recovery  in  a  different  State,  when 
rendered  without  jurisdiction  of  the  person  of  the  defendant,^ 
yet  condemnation  and  sales  in  rem  of  personal  property  seized 
on  and  sold  in  such  proceedings,  if  valid  within  the  State  wherein 
they  occur,  are  valid  within  all  other  States  wherein  their  validity 
may  be  brought  in  question,  and  are  entitled  to  the  same  faith 
and  credit  when  brought  in  question  in  such  other  States  as  in 
the  State  where  rendered.^  And  by  a  general  principle  of  law, 
if  jurisdiction  attached  by  proper  seizure  and  publication  of  such 
notice  as  may  in  law  be  there  required  where  such  seizures  and 
sales  are  made,  then  the  proceedings  are  there  valid  until  reversed 
although  tinctured  with  irregularities  or  errors.  ^ 

'  Melhop  v.  Doane,  31  Iowa,  397;  Monroe,  30  Mo.  462;  Rape  v.  Heaton, 

Williams  v.  Armroyd,  7  Cr.  423;  Rose  9  Wis.  328;  Pennoyer  v.  NeflF,  5  Otto, 

«.  Kimly,  4  Cr.  240,  209 ;  Croudson  v.  714.  And  service  must  be  made  within 

Leonard,  4  Cr.  433 ;  Grant  v.  McLach-  the  State,  and  must  be  personal,  or 

lin,  4  John.  34;  King  v.  Vance,  46  else  a  personal  judgment,  if  there  be 

Ind.  240;  Pennoyer  v.  Neff,  5  Otto,  no  appearance,  is  void.     Ibid. 

714;  Green  v.  Van  Buskirk,  7  Wall.  ^  Jones   «.    Spencer,  15   Wis.  583; 

139;  Molyneux  v.  Seymour,  30  Geo.  D'Arcy  v.  Ketchum,  11  How.  165. 

440;  Melhop  «.  Doane,  31  Iowa,  397.  "*  Melhop  'o.  Doane,  31  Iowa,  197; 

'  Melhop  V.  Doane,  31  Iowa,  397 ;  Croudson  v.  Leonard,  4  Cr.  433 ;  Will- 

Arndt  v.  Arudt,  15  Ohio,  33 ;  Sevier  «.  iams  «.  Armroj'd,  7  Cr.  423 ;  Grant  «. 

Roddie,  51   Mo.  580;    Thompson   ■«.  McLachlin,  4  John.  34. 

Emmert,  4  McLean,  96;  Johnson  v.  *  Edmonds  s.  Montgomery,  1  Iowa, 

Holley,  27  Mo.  594;   McLaurine   v.  143. 


102  ACTIONS   AND    SUITS    ON   JUDGMENTS. 


X.    Defenses  to  Suits  on  Judgments  and  Decrees. 

Want  of  Service.  AVant  of  service,  if  there  be  no  appearance 
of  defendant,  renders  a  personal  judgment  void  for  want  of  juris- 
diction of  the  person,  and  is  a  good  defense  to  an  action  founded 
on  it. 

Acknowledgment  of  Service  Invalid.  And  even  if  service  be 
acknowledged  by  defendant,  or  by  him  accepted,  in  writing,  in  a 
different  State,  yet  a  personal  judgment  without  other  means  of 
jurisdiction  of  the  person  will  be  invalid  if  the  written  acknowl- 
edgment or  acceptance  be  made  and  delivered  in  a  different  State 
than  that  in  which  the  judgment  is  rendered. ^  The  defendant 
cannot  place  himself  in  court  by  an  act  done  in  another  State 
and  completed  there.  Such  a  proceeding,  at  most,  amounts  to 
no  more  than  an  undertaking  or  consent  to  appear.  It  is  not 
like  an  actual  appearance  by  formal  plea  to  an  action  which  puts 
the  party  in  court  per  se.  And  in  either  case,  if  the  judgment 
be  invalid  for  want  of  jurisdiction  of  the  person  of  the  defendant, 
no  action  will  lie  thereon,  m  personaiii,  against  the  defendant 
therein  if  there  has  been  no  appearance.  For  want  of  jurisdic- 
tion of  the  person  of  the  defendant  is  a  good  defense  to  an  action 
upon  a  judgment.' 

Fraudulent  Appearance.  So  if  there  be  an  appearance  for  the 
defendant,  there  being  no  service,  and  the  appearance  be  unau- 
thorized and  fraudulent,  the  judgment  rendered  on  such  an 
appearance  will  not  sustain  an  action.* 

Oflacer's  Return  of  Service  Contested.  If  service  appears  by 
the  officer's  return,  yet  the  truth  thereof  may  be  contradicted  by 
parol  proof 

Insuflacient  Service  Shown  by  the  Record.    "When,  in  an  action 

•  Scott  V.  Noble,  72  Penn.  St.  115 ;  mott  v.  Clary,  107  Mass.  501 ;  Wood  ». 

Miller  v.  Dungan,  36  N.  J.  (L.)  21;  "Watkinson.  17  Conn.  500;  Davidson 

iMcVicker  v.  Beedy,  31  Me.  314;  Pen-  v.  Sharpe,  6  Ircd.  14;  Arndt  v.  Arndt, 

noyert).NeflF,5Otto,714,730;Thomp-  15  Ohio,  33;  Davis  v.  Smith,  5  Geo. 

son  V.  Whitman,  18  Wall.  457 ;  La-  274 ;  Warren  v.  McCarthy,  25  111.  95. 

fayette  Ins.  Co.  v.  French,  18  How.  ■•  Marx  v.  Fore,  51  Mo.  69. 

404.  '  Carleton  v.  Bickford,  13  Gray,  591 ; 

'  Scott  V.  Noble,  72  Penn.  St.  115,  Rankin  v.  Goddard,  54  Me.  28;  S.  (7. 

117;  Pennoyer  v.  Neff,  5  Otto,  714.  55  Me.  389. 

»  Marx  v.  Fore,  51  Mo.  69;  McDer- 


DEFENSES.  103 

on  a  judgment,  the  record  itself  relied  on  as  evidence  of  such 
judgment  shows  the  service  in  the  action  in  which  the  judgment 
was  rendered  to  have  been  insufficient  to  put  the  defendant  in 
court  or  subject  personally  to  its  jurisdiction,  and  it  is  not  ap- 
parent that  the  defendant  in  any  manner  appeared  to  the  action, 
then  the  state  of  the  record,  without  further  proof,  will  sustain  a 
plea  that  defendant  was  not  served  in  and  did  not  appear  to  the 
action,  and  that  jurisdiction  was,  therefore,  wanting  in  the  court 
that  rendered  the  judgment.^ 

Proof  of  other  State  Law.  If  the  question  as  to  what  the 
general  law  of  another  State  is,  arises  in  the  progress  of  a  trial, 
it  devolves  upon  the  party  alleging  it  and  claiming  the  benefit 
thereof  to  make  proof  of  it,  and  in  the  absence  of  such  proof 
the  court  will,  so  far  as  regards  the  general  law,  presume  it  to  be 
the  same  as  the  general  law  of  the  forum  where  the  cause  is 
being  tried.  ^  If  proof  thereof  be  made  as  provided  by  the  act 
of  Congress  under  the  constitution,  it  is  all  that  can  be  required. 
Otherwise,  that  is  if  not  so  proven,  then  proof  must  be  made  as 
required  by  the  law  of  the  forum  or  as  between  foreign  States.^ 

But  although  a  defendant  in  a  suit  on  a  judgment  rendered  in 
a  different  State  may  show  a  want  of  service  or  jurisdiction  of 
the  defendant's  person, ^  and  that  he  did  not  appear  in  the  cause 
in  the  court  where  the  judgment  was  rendered,  yet  to  make  such 
showing  effectual  a  foundation  therefor  must  be  laid  in  the 
pleadings  by  a  special  plea,  if  under  common  law  practice,  and 
if  in  those  States  where  that  system  is  dispensed  with,  then  by 
such  answer  or  pleading  as  by  the  local  rules  of  practice  and 
pleadings  will  enable  him  to  introduce  the  proper  evidence  to 
establish  such  defense.  If  by  the  record  an  appearance  by  attor- 
ney is  shown,  then  such  appearance  will  be  deemed  to  be  truth- 
fully shown  until  the  contrary  be  established  by  proof,  and  to 
make  such  proof  a  foundation  therefor  must  be  laid  as  above 
stated.  5 

Service  on  a  Director.  Service  upon  a  mere  director  in  one 
State  wherein  the  director  is  found,  in  a  suit  against  a  corpora- 
tion of  another  State,  does  not  give  jurisdiction  of  the  corpora- 

1  Rape  «.  Heaton,  9  Wis.  301.  19  Wall.  58;  Thompson  v.  Whitman, 

'  Ibid.  18  Wall.  457 ;  Hill  v.  Mendenhall,  31 

» Ibid.  Wall.  453,  454. 

*  Knowlcs  t).  Gaslight  «&  Coke  Co.,  «  Hill  v.  Mendenhall,  31  Wall.  453. 


104  ACTIONS    AND    SUITS    ON    JUDGMENTS. 

tiou  entity  or  person,  and,  therefore,  if  judgment  be  rendered 
against  such  corporation,  in  such  a  proceeding,  without  appear- 
ance or  other  personal  jurisdiction  thereof,  it  is  invalid  and  an 
action  will  not  lie  thereon  in  a  different  State  from  that  in  which 
it  is  rendered.* 

Plea  of  Reoovery  on  False  Testimony  no  Defense.  It  is  no  de- 
fense to  an  action  on  judgment  of  anothor  State  that  it  was  recov- 
ered by  means  of  false  testimony.  This  plea  goes  only  to  the  right 
of  recovery  in  the  original  cause,  wherein  the  judgmemt  was 
rendered,  which  cannot  be  reconsidered  collaterally  in  this  way. 
The  defendant  at  the  trial  where  the  judgment  was  obtained 
should  have  overcome  the  false  testimony  by  other  evidence,  or 
else,  if  taken  by  surprise  or  otherwise  prevented  therefrom  with- 
out his  own  fault  or  laches,  should  have  applied  for  a  new  trial. 
The  showing  cannot  be  made  in  defense  when  sued  in  another 
State  on  the  judgment  where  jurisdiction  of  his  person  existed 
in  the  court  rendering  the  judgment.^ 

Personal  Judgment  "Without  Service  or  Appearance.  If  a 
personal  judgment  be  obtained  without  appearance  or  service, 
then  the  effect  as  to  its  invalidity  is  the  same,  whether  the  de- 
fendant be  a  resident  or  non-resident  of  the  State  wherein  the 
judgment  is  rendered.' 

Service  on  Non- Resident.  And  so  if  there  be  personal  ser- 
vice made  upon  the  defendant  within  the  State  and  proper  juris- 
diction for  service,  where  the  court  is  held,  then  it  is  immaterial 
whether  the  defendant  be  a  resident  of  such  State,  or  is  a  resi- 
dent of  a  different  State,  and  is  temporarily  present  at  the  time 
of  service  in  that  where  served,  if  the  action  be  such  as  is  main- 
tainable in  a  different  State  than  that  wherein  defendant  resides"; 
for  in  actions  not  in  their  nature  local  as  growing  out  of  the 
realty,  or  as  predicated  upon  local  statute  of  a  State,  the  citizens 
of  the  respective  States  are  personally  suable  therein  wherever 
they  may  be  found.* 

Error  in  Rendering  the  Judgment  is  No  Defense.  In  suits  on 
judgments  of  other  States,  errors  of  the  court  rendering  the 
judgment  sued  on,  if  the  court  had  jurisdiction,  cannot  be  in- 
quired into  or  set  up  against  enforcement  of  the  judgment  by 

'  Latimore  v.  Union  Pacific  R.  R.         *  Rape  v.  Heaton,  9  Wis.  301. 
Co..  43  Mo.  105.  *  Rape  v.  Heaton,  9  Wis.  301 ;  Bar- 

» Cottle  V.  Cole,  20  Iowa,  481.  ney  v.  Burnstenbiader,  64  Barb.  212. 


DEFEI^SES.  105 

suit.     Such  matters  are  receivable  only  in  an  appellate  court  of 
the  State  where  the  judgment  was  rendered. ^ 

Jurisdiction  Need  Not  be  Averred.  Kor  need  jurisdiction  be 
averred  by  plaintiff  to  have  been  obtained  by  the  court  render- 
ing the  judgment.  If  a  court  of  general  jurisdiction,  that  will 
be  presumed,  in  the  absence  of  any  showing  to  the  contrary.^ 
But  if  suit  is  on  a  justice's  judgment  jurisdiction  must  be 
averred. 3 

When  Not  Controvertible  for  Fraud.  The  ruling  in  the 
supreme  court  of  the  United  States  is,  that  a  judgment  of  the- 
€ourt  of  one  State  rendered  with  full  jurisdiction,  is  not  contro- 
vertible for  fraud  when  sued  on  in  another  State,  the  defendant 
in  such  judgment  having  appeared  to  the  action  in  which  the 
judgment  was  rendered;  that  a  plea  that  the  judgment  was  ob- 
tained by  fraud  is  not  a  good  one.* 

Such,  too,  is  the  ruling  in  Louisiana,  when  it  appears  to  have 
heen  made  matter  of  defense  to  the  action.  ^  The  better  ruling, 
as  a  general  23rinciple,  is,  that  the  trial  on  the  merits  in  the  cause 
wherein  the  judgment  is  rendered,  is  conclusive  in  the  courts  of 
other  States,  if  there  was  jurisdiction  in  the  court  rendering  the 
judgment.  The  courts  of  other  States  cannot  go  behind  such 
judgments  and  try  matters  of  defense  that  might  have  been,  or 
W'ere  brought  in  question  in  the  cause  wherein  the  judgment  was 
rendered;^  and  if  by  fraud  at  the  trial  the  judgment  be  obtained, 
proceedings  should  there  be  set  on  foot  to  vacate  it.  There  are 
respectable  rulings,  however,  to  the  contrary.'' 

Only  Such  Defense  as  Subject  to  Where  Judgment  was  Rendered. 
In  a  suit  in  the  courts  of  a  State  upon  a  judgment  of  another 
State,  only  such  defenses  going  to  the  validity  of  the  judgment 
may  be  made  thereto  as  would  be  available  against  the  judgment 
in  a  court  of  the  State  where  the  judgment  was  rendered;  for 
such  records  and  judgment  of  another  State  has  the  same  force, 
and  is  entitled  to  the  same  faith  and  credit,  as  in  the  State 


"  Rogers  v.  Rogers,  15  B.  Mon.  293 ;  «  Duvall  v.  Fearson,  18  Md.  502 ; 

Milne  v.  Van  Buskirk,  9  Iowa,  558.  Rankin  v.  Gocldard,  54    Maine,  28 ; 

2  Reid  V.  Boyd,  13  Tex.  241.  Roberts  v.  Hodges,  1  C.  E.  Green,  (N. 

3  Grant  v.  Bledsoe,  20  Tex.  456.  J.)  299. 

*  Christmass  v.  Russell,  5  Wall.  290.  '  Rogers  v.  Gwyn,  21  Iowa,  58;  Da- 

'  Hockaday  v.  Skeggs,  18  La.  Ann.  vis  v.  Headley,  22  N.  J.  Eq.  115 ;  Ward 

681.  V.  Quinlivin,  57  Mo.  425. 


106  ACTIONS    AND    SUITS    ON   JUDGMENTS. 

wherein  it  is  rendered.  ^  But  where  tlie  practice  is  to  plead 
either  legal  or  equitable  defenses  to  actions  at  law,  or  both,  then 
the  defendant  in  an  action  on  a  judgment  of  another  State,  in  a 
court  of  the  State  where  such  equitable  defense  is  permitted  to 
be  made,  is  not  bound  to  take  the  remedy  of  filing  and  prosecut- 
ing a  bill  in  chancery  to  get  rid  of  liability  thereon,  but  may  set 
it  up  in  the  action  at  law  and  thus  avail  himself  thereof. ^  The 
defense  made  and  thus  allowed  in  the  case  of  Rogers  v.  Gwyn 
Mas,  that  plaintiff  promised  to  dismiss  the  action,  by  reason 
whereof  defendant  did  not  appearand  defend,  and  that  the  plain- 
tiff thereafter  took  judgment  in  violation  of  such  promise  without 
the  knowledge  of  defendant.  It  not  appearing  from  the  record 
that  defendant  had  appeared  to  the  action  wherein  the  judgment 
was  rendered,  this  defense  was  allowed.  So,  too,  in  an  action  on 
a  judgnient  of  another  State  the  defendant  may  show  in  defense 
that  the  attorney  who  entered  his  appearance  for  him  had  no 
authority  so  to  do,  and  if  such  prove  to  be  the  fact,  there  can 
be  no  recovery  on  the  judgment.' 

So  tlie  defendant  may  plead  a  release  or  payment,  or  statute 
of  limitations.*  Or,  any  other  plea  that  shows  a  discharge  or  sat- 
isfaction of  the  judgment;"^  but  the  plea  of  nul  tiel  record  is  the 
only  plea  on  which  to  test  the  validity  of  the  record  and  its  au- 
thentication. ^  A  plea  to  an  action  on  a  judgment  that  defend- 
ant was  not  served,  and  tliat  he  had  no  agent  or  attorney  in  the 

'  Mills  V.  Duryee,  7  Cr.  481 ;  Hamp-  way  v.  Stillman,  6  Wend.  447 ;  8.  G., 

ton  c.  McCounel,  3  Wheat.  234;  Tay-  4  Cow.  292;  Welch  v.  Sykes,  8  111. 

lor  v.  Carpenter.  2  Woodb.  «fc  M.  1;  198;  Alrich  v.  Kinney.  4  Conn.  380. 

Westerwelt  v.  Lewis,    2    McL.  511;  In  Harshey  t).  Blackmarr,  supra,\\\e 

Warren  Manuf.  Co.  v.  Mins.  Ins.  Co.,  supreme  court  of  Iowa,  Dillon.  J., 

2 Paine.  502;  Green  «.  Sarmiento,  Pet.  say  that  it  is  "now  settled  both  in 

C.  C.  74;  5.  C,  3  Wash.  C.  C.  17 ;  Arm-  the  Federal  and  State  courts  "  that 

strong  B.  Carson,  2  Dal.  302 ;  Field  «.  "a   judgment  debtor,  in  an  action 

Gibbs,  Pet.  C.  C.  155;  Bryants.  Hun-  against  him  on  the  judgment  of  an- 

ters,  3  Wash.  C.  C.  48 ;  Rogers  t?.  Gwyn,  other  State,  may  successfully  defend 

21  Iowa,  58.  by  showing  that  the  attorney  who 

'  Rogers  «.  Gwyn,  21  Iowa,  58 ;  Har-  entered  an  appearance  for  him  had  no 

shey  V.  Blackmarr,  20  Iowa,  161,  173;  authority  to  do  so." 

Thompson  p.  Emmert,  15  111.  415.  *  Jacquette  v.  Hugunon,  2    McL. 

'Harsheyu.  Blackmarr,  20  Iowa,  129;  Sohn  tj.  Waterson,  1  Dillon,  .358. 

161,  172;   Hindman  v.  Mackall,  3  G.  *  Jacquette  t;.  Hugunon,  2  McL.  129. 

Greene,  170;  Shelton  v.  Liffln,  6  How.  » Westerwelt  v.  Lewis,  2  McL.  511 ; 

164;  Baltzell  v.  Nosier,  1  Iowa,  588;  Thompson  v.  Emraert,  4  McL.  96. 
Hall  V.  Williams,  6  Pick.  232;  Shum- 


DEFENSES.  107 

State  wherein  the  judgment  was  rendered  authorized  to  appear 
or  acknowledge  service  for  him,  is  not  sufficient,  if  true,  to  bar  a 
recovery  upon  a  judgment.  For  aught  that  is  alleged  in  it  the 
defendant  may  have  voluntarily  and  in  person  submitted  himself 
to  the  jurisdiction  of  the  court.  But  if  the  plea  had  also  denied, 
that  defendant  submitted  himself  in  any  manner  to  the  juris- 
diction of  the  court,  it  would  have  been  good.i 

May  Show  Want  of  Jurisdiction.  It  seems  to  be  a  well  settled 
principle  of  law,  that  in  defense  to  an  action  on  a  judgment  of 
another  State,  the  defendant  may  show  a  want  of  jurisdiction  of 
the  subject  matter,  or  of  the  person  of  the  defendant,  in  the 
court  rendering  the  judgment,  as  also,  that  there  was  neither  ser- 
vice or  appearance  in  the  cause;  and  this,  too,  against  recitals  to 
the  contrary  in  the  transcript  of  the  record  sued  on.^  But  the 
plea  of  fraud  is  not  admissible,  as  a  general  principle,  to  an 
action  at  law  upon  a  judgment  of  another  State;  such  is  the 
settled  ruling  of  the  supreme  court  of  the  United  States.  ^ 

Statute  of  Limitations.  A  plea  of  the  statute  of  limitations 
of  a  State  to  an  action  in  the  courts  thereof,  brought  upon  a 
judgment  rendered  in  another  State,  that  the  defendant  at  the 
time  of  commencing  the  action  in  which  the  judgment  was  ren- 
dered was  a  resident  of  the  State  wherein  suit  on  the  judgment  is 
pending,  and  that  the  cause  of  action  on  which  sucli  judgment 
was  rendered,  would  have  been  barred  by  the  laws  of  the  latter 
State,  if  the  suit  had  been  brought  therein,  is  bad,  since  such 
statute  of  limitations  is  void  for  unconstitutionality.  Strictly 
speaking,  such  statute  is  not  one  of  limitation  merely  intended 
to  limit  the  time  in  which  the  remedy  is  available,  but  is,  if  it 
were  valid,  a  bar  to,  or  denial  of,  all  remedy  at  any  time.  Full 
faith  and  credit  are  not  only  to  be  given  to  such  record  of  judg- 
ment in  the  State  where  sued  on,  but  it  is  there  entitled  to  have 
the  same  effect  and  force  that  it  had  in  the  State  where  rendered, 
so  that  a  statute  of  limitation  of  any  State  depriving  it  of  that 
effect  is  unconstitutional  and  void.* 

^Stritble  V.  Malone,  3  Iowa,  586.  dieting  the  recitals  or  adjutlications 

^  Pollard  V.  Baldwin,  22  Iowa,  328 ;  set  out  in  the  record."  Lowe  v.  Lowe, 

Thompson  v.  Whitman,  18  Wall.  457.  40  Iowa,  223 ;  Galpin  v.  Page,  18  Wall. 

"  It  is  now  the  prevailing  rule  that  in  350;  Arnott  v.  Webb,  1  Dillon,  362. 

actions  upon  judgments  of  a  sister  ^  Christmassy.  Eussell,  5  Wall. 304; 

State,   want  of  jurisdiction  may  be  Maxwell  v.  Stewart,  22  Wall.  77. 

shown  in  the  court  by  proof  contra-  *  3Iills  v.  Duryee,  7  Cr.  483 ;  Christ- 


108  ACTIONS   AND   SUITS   ON  JUDGMENTS. 

Personal  jurisdiction.  Judgment  conclusive.  TVlien  juris- 
diction of  the  person  of  the  defendant  attached,  in  the  coart 
"wherein  tlie  judgment  is  rendered,  the  judgment  is  conclusive, 
and  is  not  open  to  any  defense  or  inquiry  upon  the  merits.^  But 
in  Iowa  and  some  other  of  the  States  tlie  plea  of  fraud  is  allowed 
as  a  defense  to  an  action  at  law  on  a  judgment  of  another  State.' 

Personal  jurisdiction  obtained  by  fraud.  If  jurisdiction  be 
obtained  in  the  courts  of  one  State,  by  fraud,  over  the  person  of 
a  defendant  who  resides  in  a  different  State,  that  fact  may  be 
shown  to  defeat  the  action  where  jurisdiction  is  thus  obtained, 
and  is  a  good  defense  thereto;  or  the  defendant  therein  may  dis- 
regard the  action  to  which  he  is  thus  made  a  party,  and  if  judg- 
ment be  rendered  against  him  tlierein,  and  he  be  sued  in  another 
State  on  such  judgment,  then  a  showing  of  sucli  fraudulent  man- 
ner of  obtaining  jurisdiction  of  defendant's  person  in  the  original 
action  may  be  made,  and  will  be  a  full  defense  to  the  action  on 
the  judgment  in  such  other  State. ^  The  defendant  in  the  case 
cited  below,  of  Dunlap  v.  Cody^  was  a  resident  of  Iowa,  and 
was  fraudulently  enticed  into  Illinois  for  the  purpose  of  there  su- 
ing him,  by  falsely  pretending  that  he  was  wanted  there,  he  being 
a  carpenter,  in  reference  to  the  building  of  a  pretended  elevator 
of  great  cost;  whereas,  in  fact,  he  was  only  wanted  there  to  obtain 
jurisdiction  of  his  person  in  an  action,  with  the  advantage  thereby 
of  evading  the  operation  of  the  Iowa  statute  of  limitations,  which 
M'as  an  obstacle  in  the  way  of  recovery  in  the  Iowa  courts.  The 
defendant  being  sued  in  loM'a,  on  the  Illinois  judgment  obtained 
under  such  circumstances,  the  Supreme  Court  held  that  no  re- 
covery could  be  had  thereon.  Day,  J.,  delivering  the  opinion  of 
the  court,  characterizes  the  transaction  in  the  following  terms: 
*'  An  enlightened  and  just  administration  of  the  law,  no  less  than 
sound  public  morals,  condemns  such  practices."* 

Suit  against  executor  or  administrator.  In  a  suit  against  an 
executor  or  administrator  in  a  State  where  he  is  acting  as  such, 
by  virtue  merely  of  ancillary  letters,  and  suit  is  brought  by  a 

mass  t).  Russell,  5  Wall.   290,   302;  »  Whetstone  ».  Wlietstone,  31  Iowa, 

Story  on  the  Const.  §  1318.  276. 

1  Bank  of  U.  S.  v.  Merchants'  Bank  »  Dunlap  v.  Cody,  31  Iowa,  260;  Ils- 

of  Baltimore,  7  Gill,  430;  Bissell  v.  ley©.  Nichols,  12  Pick.  270. 

Briggs,  9  Mass.  462 ;  Christmass  i>.  *  Dunlap  v.  Cody,  31  Iowa,  261,  262. 
Russell,  5  Wall.  290,  302. 


DEFENSES.  10^ 

distributee  or  legatee  of  the  deceased,  a  plea  that  the  domicile  of 
the  deceased  was,  at  the  time  of  his  death,  in  a  different  State, 
and  that  the  defendant  is  executor  or  administrator,  as  the  case 
may  be,  at  such  place,  is  a  good  defense  to  the  action,  for  distri- 
bution is  to  be  made  and  legacies  are  to  be  paid  under  the 
administration  of  the  domicile.  ^ 

^  Probate  Court  v.  Matthews,  6  Vt.      2  Mass.  384 ;  Hapgood  v.  Jennison,  2 
269 ;  Selectmen  of  Boston  v.  Boylston,      Vt.  294. 


110        INTER-STATE  PROOF  OF  RECORDS. 


CHAPTER   XI. 

INTER-STATE  PROOF  OF  RECORDS,  JUDICIAL  PROCEEDINGS  AND  LAWS. 

I.    National  Protisions  of  Law  on  the  Subject. 
II.    Proof   of   Records,   and  Judicial    Proceedings  in    Pursuance 

THEREOF. 

III.  Proof  of  Statute  Laws  of  States  under  the  Act  of  Congress. 

IV.  Proof   of   State   Laws   as  at   Common   Law   and   Under   the 

Statutes  of  the  States. 
v.    Proof  of  Proceedings  of  Justices  of  the  Peace. 
VI.    Proof  of  Records  of  Office  Books. 

I.    National  Provisions  of  Law  on  the  Subject. 

Faith  and  credit  to  records.  By  Section  1  of  Article  4  of  the 
Constitution  of  the  United  States,  it  is  provided  and  declared 
that  full  faith  and  credit  shall  be  given  in  each  State  to  the  public 
acts,  records  and  judicial  proceedings  of  every  other  State;  and 
that  Congress  may,  by  general  law,  prescribe  the  manner  in  which 
such  acts,  records,  and  proceedings  shall  be  proved,  and  the  effect 
thereof.  In  pursuance  of  this  provision  of  the  Constitution, 
Congress,  on  the  26th  of  May,  1790,  passed  an  act  in  substance, 
that  the  acts  of  the  legislatures  of  the  several  States  shall  be  au- 
thenticated by  having  the  seal  of  their  respective  States  affixed 
thereto,  and  that  the  records  and  judicial  proceedings  of  the 
courts  of  any  State  shall  be  proved  or  admitted  in  any  other  court 
within  the  United  States,  by  the  attestation  of  the  clerk  and  the 
seal  of  the  court  annexed,  if  there  be  a  seal,  together  with  a  cer- 
tificate of  the  judge,  chief  justice  or  presiding  magistrate,  as  the 
case  may  be,  that  the  said  attestation  is  in  due  form.  And  that 
the  said  records  and  judicial  proceedings,  authenticated  as  afore- 
said, shall  have  such  faith  and  credit  given  to  them  in  every  court 
M-ithin  the  United  States  as  they  have  by  law  or  usage  in  the 
<M)urts  of  the  State  from  whence  the  said  records  are  or  shall  be 
taken.  1     And  by  a  subsequent  act  of  Congress,  of  the  27th  of 

•  United  States  Statutes  at  Large,  Vol.  1, 122 ;  R.  S.  of  U.  S.,  2d  Ed.  §§  905, 906. 


NATIOIN'AL    PROVISIONS    OF    LAW.  Ill 

March,  1804,  it  is  declared  that  all  records  and  exemplifications 
of  office  books  which  are  or  may  be  kept  in  any  public  office  of 
any  State  not  appertaining  to  a  court,  shall  be  proved  or  admit- 
ted in  any  other  court  or  office  in  any  other  State  by  the  attesta- 
tion of  the  keeper  of  the  said  records  or  books,  and  the  seal  of 
liis  office  thereto  annexed,  if  there  be  a  seal,  together  with  a  cer- 
tificate of  the  presiding  justice  of  the  court  of  the  county  or  dis- 
trict, as  the  case  may  be,  in  which  such  office  is  or  may  be  kept, 
or  of  the  governor,  secretary  of  State,  the  chancellor  or  the  keeper 
of  the  great  seal  of  the  State,  that  the  said  attestation  is  in  due 
form,  and  by  the  proper  officer;  and  the  said  certificate,  if  given 
by  the  presiding  justice  of  a  court,  shall  be  further  authenticated 
by  the  clerk  or  prothonotary  of  the  said  court,  who  shall  cer- 
tify, under  his  hand  or  the  seal  of  his  office,  that  said  presiding 
justice  is  duly  commissioned  and  qualified;  or,  if  the  said  certi- 
ficate be  given  by  the  governor,  the  secretary  of  State,  the  chan- 
cellor, or  keeper  of  the  great  seal,  it  shall  be  under  the  great  seal 
of  the  State  in  which  the  said  certificate  is  made.  And  that  the 
said  records  and  exemplifications,  authenticated  as  aforesaid,  shall 
have  such  faith  and  credit  given  to  them  in  every  court  and  office 
within  the  United  States  as  they  have  by  law  or  usage  in  the 
courts  or  offices  in  the  States  from  whence  the  same  are  or  shall 
be  taken.  1  And  by  the  last  named  act,  it  is  also  provided  that 
the  provisions  of  both  acts  shall  apply  as  well  to  the  public  acts 
records,  office  books,  judicial  proceedings,  courts  and  offices  of 
the  respective  Territories  of  the  United  States,  and  countries  sub- 
ject to  the  jurisdiction  of  the  United  States,  as  to  the  public  acts, 
records,  office  books,  judicial  proceedings,  courts  and  offices  of  the 
several  States.  ^ 

Applicable  only  to  State  courts.  The  foregoing  constitutional 
and  statutory  provisions  of  the  United  States  apply  only  to  the 
courts  of  the  States  and  Territories  of  the  United  States.  They 
have  no  reference  whatever  to  the  courts,  records,  documents  or 
acts  of  the  United  States,  as  evidence  in  the  State  courts,  or  to 
those  of  the  State  courts,  as  evidence  in  the  national  courts;  in 
these  cases  the  ordinary  certificate  of  the  clerk,  and  seal  of  the 
court,  in  such  manner  or  form  as  renders  them  admissible  in 

1  United  States  Statutes  at  Large,  "  United  States  Statutes  at  Large, 

Vol.  3,  293;  R.  S.  of  U.  S.,  3d  Ed.  §  Vol.  3,  398;  R.  S.  of  U.  S.,  3d  Ed.  § 
906.  906. 


112        INTER-STATE  PROOF  OF  RECORDS. 

the  courts  of  the  same  State,  or  in  the  Federal  courts,  as  the  case 
may  be,  renders  these  documents,  records  and  acts  mutually  ad- 
missible as  between  the  State  and  Federal  courts,  when  otherwise 
proper  evidence.^  But  notwithstanding  those  national  provis- 
ions are  not  intended  to  apply  to  the  United  States  courts,  yet 
the  records  of  those  courts  are  admissible  in  other  courts,  though 
certified  in  accordance  with  said  act  of  Congress.*  The  fact  that 
such  authentication  'more  than  fulfills  the  requirement  of  the  law 
as  to  admissibility  will  not  be  ground  of  exclusion.' 

State  and  national  courts  not  foreign  to  each  other.  The  State 
and  national  courts,  though  emanations  of  different  sovereign- 
ties,* are  in  nowise  foreign  tribunals  to  each  other,  nor  are  the 
national  courts  of  one  circuit  or  district  such  in  reference  to  those 
of  other  circuits  or  districts,  but  are  domestic  tribunals,  whose 
seals  are  recognized  as  matter  of  course.'  But  such  courts,  both 
national  and  State,  are  courts  of  different  sovereignties,  and  the 
national  courts  are  only  required  to  give  to  judgments  of  State 
courts  such  authority  as  they  are  entitled  to  in  the  conrts  of 
the  State  wherein  they  are  rendered. ^ 

Illustration.  Void  Judgments.  Apersonal  judgment  rendered 
without  service  on  or  appearance  of  defendant  therein  is  void, 
and  will  be  so  regarded  when  brought  in  question  as  a  judgment 
of  a  State  court  in  the  courts  of  the  United  States,''  notwith- 
standing the  act  of  Congress  of  May  26,  1790,  and  amendatory 

»  Mason  v.  Lawrason,  1  Cr.  C.  C.  Rawle,  386 ;  Hunt  v.  Lyle,  8  Yerg.  142. 

190 ;  Bennett  v.  Bennett,  Deady,  299 ;  *  Buford  v.  Hickman,  Hempst.  233. 

Mewster  v.  Spalding,  6  IMcL.  24 ;  Mur-  *  Pennoyer  v.  Neff,  5  Otto,  714. 

ry  r.  Marsh,  2  Hay w.  (N.  C.)  290 ;  Bu-  "  Turnbull  v.  Payson,  o  Otto,  418, 

ford  V.  Hickman,  Hempst.  232 ;  United  423,  424 ;  Womackc.  Dearman,  7  Port. 

States  V.  Wood,  2  Wheeler's  Criminal  (Ala.) 513 ;  Commonwealth r.  Phillips, 

Cases,  326;    Turnbull  v.  Payson,  5  11  Pick.  28;  Chamberlin  v.  Ball,  15 

Otto,  418, 422 ;  Adams  t.Way,  33  Conn.  Gray,  352 ;  Pennoyer  v.  Neff,  5  Otto, 

419;    Pepoon    t;.    Jenkins,    2   John.  714. 

Cases,  119;    Williams  v.  Wilkes,  14  «  Pennoyer  «.  Neff,  5  Otto,  714. 

Peun.  St.  228;  Jenkins  v.  Kinsley,  3  '  Pennoyer  v.  Neff,  5  OUo,  714,  733. 

John.  Cases,  474;  Adams  «.  Lisher,  3  734;  Smith  v.  McCutcheon.  38  Mo. 

Blackf.  241.  415;  Darrance  v.  Preston,   18  Iowa, 

'Craig   «.  Brown,  Pet.  C.  C.  352;  396;    ilitchell  v.  Gray,  18  Ind.  123; 

Scott  V.  Blanchard,  8  Martin,  (n.  s.)  Hakes  v.  Shupe,  27  Iowa,  465 ;  Bur- 

303;  Johnson  v.  Rannalls,  6  Martin,  den  v.  Fitch,  15  John.  121;  Harris  v. 

(N.  8.)  621 ;  Balfour  v   Chew,  5  3Iar-  Hardeman,  14  How.  334 ;  Thompson 

tin,  (N.  8.)  517 ;  Barbour  v.  Watts,  2  A.  r.  Whitman.  18  Wall.  457 ;  Lafayette 

K.  Marsh.  290;  Ripple  c.  Ripple,  1  Ins.  Co.  v.  French,  18  How.  404. 


JUDICIAL    PROCEEDIl^GS.  113 

acts,  prescribing  the  manner  of  proving  records  and  judicial  pro- 
ceedings of  the  several  States  in  the  tribunals  of  another  of  them; 
these  acts  do  not  apply  to  such  judgments  as  are  rendered  with- 
out jurisdiction  of  the  defendant's  person,  obtained  by  service  of 
process  within  the  State,  or  else  by  appearance  to  the  action. 
Such  judgments  are  void.i 

II.     Proof  of  Records  and  Judicial  Proceedings  in 
Pursuance  Thereof. 

Attestation  and  Seal.  Under  the  act  of  Congress  of  May  26, 
1790,  the  records  and  proceedings  of  the  courts  of  any  State  are 
provable  and  admissible  in  any  other  court  within  the  United 
States,  by  the  attestation  of  the  clerk  and  the  seal  of  the  court, 
if  there  be  a  seal,  thereto  annexed,  together  with  the  certificate 
of  tJie  judge,  chief  justice,  or  presiding  magistrate,  as  the  case 
may  be,  that  the  attestation  is  in  due  forra.^  If  the  records  to 
be  certified  be  those  of  a  court  having  no  seal,  then  the  clerk's 
certificate  must  show  that  fact,  or  else  it  must  be  shown  by  the 
certificate  of  the  judge. ^ 

Faith  and  Credit  of  Records.  Records  and  judicial  proceed- 
ings thus  authenticated  are  entitled  to  such  faith  and  credit  in 
every  court  in  the  United  States  as  they  have  by  law  or  usage  in 
the  courts  of  the  State  from  whence  they  are  taken.* 

Extended  to  Territories.  By  act  of  Congress  of  March  27, 
1804,  the  provision  aforesaid  in  reference  to  authentication  and 
admissibility  in  evidence  of  judicial  proceedings  and  records  of 
the  courts  of  the  States,  and  the  effect  thereof,  are  extended  to 
courts  of  all  the  Territories  of  the  United  States.''  Though 
there  must  have  been  personal  jurisdiction  of  the  defendant  to 
entitle  the  proceedings  to  such  faith  and  credit,  and  though  the 
proceeding  be  commenced  by  attachment  without  service  on 
defendant,  yet  if  he  appear  and  defend,  and  there  then  be  per- 
sonal judgment  against  him,  the  case  comes  within  the  act  of 

'  D'Arcy  n.  Ketchum,  11  How.  165.  *  1  Stat,  at  Large,  122,  §  1 ;  1  Bright. 

»  1  Stat,  at  Large,  122,  §  1 ';  1  Bright^  ley's  Dig.  265,  §  9  ;  1  Greenl.  Ev.  § 

ley's  Dig.  of  Laws,  265,  §  9;  R.  S.  of  504. 

U.  S.,  2d  Ed.  §  905;  1  Greenl.  Ev.  S  0  2  Stat,  at  Large,  298,  §  2;  R  S.  of 

504;  1  Kobinson's  Pr.  272-276.  U.  S.,  2d  Ed.  §  906;  1  Greenl,  Ev.  § 

•  Craig  «.  Brown,  Pet.  C.  0.  362.  504. 


114        INTEE-STATE  PROOF  OF  RECORDS. 

Congress,  and  the  proceedings  are  entitled  to  full  faith  and  credit 
in  other  States,  properly  certified.  ^ 

Judge's  Certificate.  These  certificates,  when  in  due  form,  are 
proof  in  themselves.  The  questions  of  regularity  of  the  clerk's 
certificate,  and  of  his  being  clerk,  or  if  certifying  as  deputy,  then 
also  the  questions  as  to  his  being  deputy,  and  of  the  deputy's 
power  to  do  the  act,  are  all  settled  in  the  affirmative  bj  the 
judge's  certificate,  if  it  be  in  conformity  to  the  act  of  Congress.^ 
And  though  the  certificate  of  the  judge  be  not  dated,  yet  if  it 
immediately  follows  the  certificate  of  the  clerk,  and  the  latter  be 
dated,  that  is  sufficient.  ^  So,  letters  of  guardianship,  certified 
by  a  probate  judge  as  his  own  clerk,  and  by  him  certified  to  as 
judge  as  being  in  due  form,  and  stating  that  he  is  also  clerk,  arc 
sufficiently  attested  under  the  law.* 

Proof  of  Statutes.  And  so  the  certificate  and  seal  of  State  ot 
the  genuineness  of  statute  laws  need  no  other  proof  of  their 
authenticity,  or  of  the  official  character  of  the  person  certifying 
as  secretary  of  state,  and  if  there  be  interlineations  they  are  pre- 
sumed to  have  been  made  rightfully;*  and  so  it  is  settled  that 
State  laws  need  not  be  proved  in  the  courts  of  the  United 
States.  8 

Informal  Judgment  Entries.  And  where  by  the  State  prac- 
tice no  formal  entry  of  judgments  of  record  in  extenso  is  made, 
but  mere  docket  entries  are  used,  as  in  Pennsylvania  and  in  the 
District  of  Columbia,  in  the  State  and  local  courts,  then  such 
docket  entries  and  proceedings  in  the  cause,  duly  certified  and 
authenticated  under  said  acts  of  Congress,  are  evidence  in  the 
courts  of  other  States  and  Territories,  if  a  foundation  be  laid  in 
the  pleadings  for  showing  and  making  proof  of  such  practice 
and  the  reason  of  the  non-production  of  a  more  formal  record.' 

Personal  Jurisdiction  Necessary.     Though  the  authentication 

'  Mayhew  v.  Thatcher,   6  Wheat.         «  Owings  «.  Hull,  9  Pet.  607 ;  U.  S. 

129.  -0.  The  Amedy,  11  Wheat.  392 ;  Leland 

"Young  c.   Thayer,  1  G.  Greene,  v.  Wilkinson,  6  Pet.  317;   Hinde  o, 

1 96 ;  Lewis  v.  Sutlift,  2  G.  Greene.  186 ;  Vattier,  5  Pet.  398. 

Ferguson  t.  Harwood,  7  Cranch,  408.  ■>  Washington,  A.  &  G.  St.  Packet 

»  Lewis  V.  Sutliff,  2  G.  Greene,  186.  Co.  v.  Sickles,  24  How.  333 ;  Ferguson 

<  Koup  «.  Clark,  4  G.  Greene,  294.  «.  Harwood,  7  Cr.  408;  Philadelphia, 

•  U.  S.  t).  The  Amedy,  11  Wheat.  Wil.  «fc  Bait.  R.  R  Co.  v.  Howard,  13 

892;  1  Greenl.  on  Ev.  §  480  ;^1  Rob-  How.  307;  Hade  o.  Brotherton,  3  Cr. 

inson's  Pr.  252.  *  C.  C.  594. 


JUDICIAL    PROCEEDINGS.  115 

and  formalities  be  strictly  in  compliance  with  the  acts  of  Con- 
gress, yet  if  neither  personal  ser\dce  of  the  original  process  nor 
the  appearance  of  the  defendant  be  shown,  so  as  to  give  the 
court  jurisdiction  of  the  person  of  the  defendant,  such  record  is 
of  no  value  in  another  State  in  evidence  against  him  as  the 
formation  for  a  personal  recovery  ;i  for  to  render  a  record  evi- 
dence under  the  acts  of  Congress  in  the  courts  of  a  different 
State,  it  must  not  only  show  that  the  court  had  personal  juris- 
diction of  the  defendant  or  party  against  whom  it  is  to  be  intro- 
duced,2  but  must  be  authenticated  strictly  in  accordance  with 
said  acts  of  Cono-ress.  It  must  be  authenticated  according  to 
the  form  used  in  the  court  from  whence  it  comes ^  by  the  judge, 
chief  justice  or  presiding  magistrate  of  the  court,  as  well  as  by 
the  clerk,  under  seal  of  the  court,  if  there  be  a  seal.  A  certificate 
■of  a  person  styling  himself  '■^  one  of  the  judges^"*  is  insufficient.'* 
And  if  there  be  no  seal,  then  that  fact  sliould  be  shown  in  the 
certificate  of  the  judge. ^  If  the  proceedings  be  from  a  surro- 
gate's court,  of  which  the  surrogate  is  both  clerk  and  judge,  then 
the  authentication  should  show  that  fact,  and  the  surrogate 
should  first  certify  to  his  proceedings  as  clerk  and  then  add 
thereto  his  certificate  as  judge,  so  as  to  authenticate  the  attesta- 
tion of  the  clerk  as  to  his  being  such  and  as  to  its  being  in  due 
form  of  law  so  as  to  bring  it  within  the  acts  of  Congress;^  and 
the  proper  way  is,  to  use  the  very  language  of  the  act.  If  there 
be  a  seal  of  the  court,  then  the  seal  must  be  affixed  to  the  cer- 
tificate of  the  clerk,  and  it  will  not  be  sufficient  if  only  to  the 
certificate  of  the  judge.  His  certificate  needs  no  seal  under  the 
act  of  Congress.'  And  if  the  judge's  certificate  does  not  state 
that  the  clerk's  is  in  due  form,  the  record  is  inadmissible.  ^  So, 
the  judge's  certificate  that  the  person  certifying  as  such  is  clerk, 
and  that  his  signature  is  genuine,  is  insufficient;  it  does  not 
meet  the  requirements  of  the  act  of  Congress.^ 

The  Acts  of  Congress  Apply  only  to  Coiirts  of  Record.    This 

'  Buford  V.  Hickman,  Hempst.  332.  «  Catlin  ©.   Underbill,   4  McLean, 

8  Ibid.  199. 

«  Craig  V.  Brown,  Pet.  C.  C.  353.  ■>  Turner  ®.  Waddington,  3  Wash.  C. 

•»  Gardner  ».  Lindo,  1  Cr.  C.  C.  78,  C.  126. 

04 ;  Stewart  v.  Gray,  Hempst.  94.  «  Trigg  v.  Conway,  Hempst.  538 ; 

*  Morgan  v.  Curtenius,  4  McLean,  Craig  v.  Brown,  Pet.  C.  C.  352. 

366;  Talcott  c.  Delaware  Ins.  Co.,  2  »  Craig  ©.  Brown,  Pet.  C.  C.  353. 
Wash.  C.  C.  449. 


116        INTER-STATE  PROOF  OF  RECORDS. 

method  of  proving  inter-St&te  records,  as  provided  by  the  act 
of  Congress,  has  been  construed  to  apply  only  to  the  proceedings 
of  courts  of  record,  and  is,  therefore,  inapplicable,  in  general,  to 
the  courts  of  justices  of  the  peace.  ^  But  where,  as  in  some  of 
the  States,  justice's  courts  are  courts  of  record,  it  is  decided  in 
reference  to  their  records,  that  they  come  within  the  provisions 
of  the  act,  and  may  be  certified  or  authenticated  in  accordance 
therewith.* 

Records  ol  Appellate  Court  Including  Justice's  Proceedings. 
And,  notwithstanding  the  proceedings  of  justices'  courts  are  not 
ordinarily  held  to  be  within  the  meaning  of  the  act  of  Congress,  and 
may  not  be  authenticated  under  the  same  with  the  same  claim  to 
faith  and  credit,  as  the  proceedings  of  courts  of  record  and  general 
jurisdiction,  it  is,  nevertheless,  decided  that  when  by  appeal,  or 
other  legal  process,  the  written  proceedings  of  justices'  courts  have 
gotten  into  the  courts  of  record  and  general  jurisdiction,  and 
therein  are  matured  into  judgment,  the  proceedings  of  the  latter 
court  including  those  from  the  justice's  court,  are  together  as 
an  entirety  within  the  provisions  of  the  statute,  and  may  be  au- 
thenticated as  therein  provided,  and  thereupon  be  entitled  to  the 
same  faith  and  credit  in  the  courts  of  other  States  as  is  given  to 
the  original  proceedings  of  the  ordinary  State  courts,  when  so 
authenticated.' 

Courts  of  Chancery  and  Probate  Courts.  Courts  of  chancery, 
however,  and  of  probate,  are  as  strictly  within  the  meaning  and 
intention  of  the  act  of  Congress  as  are  the  ordinary  courts  of 
common  law.* 

Authentication  Conclusive.  If  the  State  or  Territorial  record 
or  document  be  duly  authenticated,  as  between  the  State  courts, 
or  State  and  Territorial  courts,  in  accordance  with  said  acts  of 
Congress,  then  no  evidence  is  admissible  to  show  that  the  attes- 
tation is  not  171  due  form  of  law,  or  to  invalidate  the  legal 
authenticity  thereof.* 

>  Snyder  v.  Wise,  10  Penn.  St  157;  Bissell  v.  Edwards,  5  Day,  363;  Blod- 

Robinson  v.  Prescott,  4  N.  H.  450;  gel  v.  Jordan,   6  Vt.  580;   Scott  u 

Warren  v.  Flag,  2  Pick.  448 ;  Silver  Cleveland,  3  T.  B.  Mon.  62. 

Lake  Bank  v.  Harding,  5  Ham.  545;  ^  jja,3e  ^,,  Brotherton,  3  Cr,  C.   C. 

Maliurin  v.  Bickford,  6  N.  H.  507;  594;   Clemmer  v.  Cooper,   24  Iowa, 

Thomas  v.  Robinson,  3  Wend.  2G7 ;  1  182. 

Greenl.  Ev.  i-§  505,  513.  *  Greenleaf  on  Evidence,  §  511. 

*  Stark weatlier  v.  Loomis,  3  Yt  573;  » Ferguson  t.  Harwood,  7  Or.  408; 


PKOOF    OF    STATUTE    LAWS.  117 

Becords  Where  New  State  is  Formed  Out  of  Old  One.  "Where 
a  new  State  is  formed  out  of  a  part  of  an  old  one,  and  suit  is 
brought  in  still  another  State  on  the  transcript  of  a  judgment 
rendered  before  such  new  State  was  formed,  in  a  county  subse- 
quently included  in  such  new  State,  it  is  held  that  a  certificate  of 
the  clerk  of  the  circuit  court  of  the  county  certifying  that  the 
State  was  divided  and  a  new  State  formed  of  a  portion  thereof 
including  tlie  county  wherein  the  judgment  was  rendered;  that 
the  court  that  rendered  the  judgment  was  abolished  or  discon- 
tinued, and  its  records  and  proceedings  transferred  to  said  circuit 
court  of  the  new  State,  and  that  he,  as  clerk  of  said  circuit  court, 
is  the  proper  and  lawful  custodian  of  said  records  and  proceed- 
ings of  the  court  wherein  the  judgment  was  rendered,  such  cer- 
tificate being  under  the  signature  of  the  clerk  and  seal  of  said 
court;  and  the  same  being  further  authenticated  by  the  certifi- 
cate of  the  sole  judge  of  said  circuit  court,  stating  that  the 
attestation  of  the  clerk  is  in  due  form,  and  the  person  certifying 
as  clerk  is  the  clerk  of  said  court,  the  record  and  authentication 
thereof  were  held  sufficient  to  maintain  the  action.^ 

III.     Pkoof  of  Statute  Laws  of  States  Under  the  Act  of 

Congress, 

Proof  of  State  Statutes.  Under  the  act  of  Congress  of  May 
26,  1790,  the  statute  laws  of  the  several  States  are  provable  and 
admissible  in  evidence  in  the  courts  of  the  States  respectively, 
by  having  the  seal  of  the  State  annexed  thereto, ^ 

When  thus  authenticated  by  the  seal  of  State,  the  presumption 
is  that  they  were  so  sealed  by  the  proper  keeper  of  the  seal,  and 
therefore  no  other  proof  or  authentication  of  the  genuineness 
of  such  laws  is  required,  ^ 

Statutes  Pleaded.     Whichever  party  to  a  judicial  proceeding 

Craig?3.  Brown,  Pet.  C.C.  354;  Young  Mills  ??.  Duryee,  7  Cr.  481;  Mayliew 

V.  Thayer,  1  G.  Greene,  196.      And  v.  Thalcber,  6  Wheat.  129. 
though  the  clerk  certifies  as  deputy,  '  Darrah  v.  Watsou,  36  Iowa,  116, 

no  evidence  is  required  to  show  that  *  1  Stat,  at  Large  122,  §  9;  R.  S.  of 

a  deputy  is  authorized  to  do  the  act,  U.  S.  2d  ed.  §§  905,  906. 
if  the  judge's  certificate  follows  and         *  United  Slates-??.  Johns,  4  Dal.  413; 

is  in  conformity  to  the  act  of  Con-  S.  C,  1  Wash.  C.  C.  363 ;  United  States 

gress.    The  latter  sufficiently  proves  «.  The  Amedy,  11  Wheat.  392;  Leland 

the    legality  of   the    former.     Ibid.  v.  Wilkinson,  6   Pet.  317;  1  Greenl. 

Hampton  v.  McConnell,  3  Wheat.  234 :  Ev.  g  480 ;  1  Robinson's  Practice,  252. 


118        INTER-STATE  PROOF  OF  RECORDS. 

relies  on  a  statute  law  of  auotlier  State  to  effect  a  recovery  or  a 
defense,  or  to  establish  any  facts,  must  set  out  and  plead  such 
statute  as  in  pleading  any  fact,  and  must  make  proof  thereof.  A 
mere  averment  of  the  statute  and  a  right  claimed  under  it  is  not 
enough;  the  statute  itself  must  be  substantially  set  out,  so  that 
the  court,  if  it  is  proven,  may  judge  of  and  decide  the  effect 
thereof.  ^ 

State  Courts  do  Not  Take  Judicial  Notice  of  Other  States'  Stat- 
utes. For  the  courts  of  a  State  cannot  take  judicial  notice  of 
the  statute  laws  of  other  States.  Tlie  party  claiming  the  benefit 
thereof  must  make  proof  of  them  as  matters  of  fact;'  and  to 
enable  that  to  be  done,  they  must  be  pleaded.  They  must  be  set 
out  at  length  and  pleaded,  so  far  as  relied  on,  and  then  proven  in 
the  manner  prescribed  by  the  act  of  Congress,  or  else  in  such 
other  manner,  if  any,  as  is  permissible  by  the  laws  of  the  State 
where  such  proof  is  to  be  made.  It  will  not  do,  in  pleading 
them,  to  refer  to  them  merely  by  their  title  and  date  of  enact- 
ment or  approval;  they  must  be  set  out  so  as  to  enable  the  court 
to  see  and  know  what  they  are,  and  to  judge  for  itself  of  their 
legal  effect.  3 

The  ruling  in  Ohio  is,  that  their  existence  is  matter  of  fact  for 
decision  of  the  jury,-*  but  when  shown  to  exist  and  placed  in 
evidence,  their  construction  is  for  the  court.  But,  query.  If 
proven  by  documentary  evidence,  as  by  certificate  and  seal  of  the 
Secretary  of  State,  under  the  act  of  Congress,  in  case  of  statute 
laws,  if  their  existence  is  not  then  a  question  for  the  court? 

Nor  Notice  of  Local  Officers.  And  as  State  courts  of  one  State 
do  not  take  judicial  notice  of  the  laws  of  another  State,'  so  they 
do  not  of  local  officers;  as,  for  instance,  that  there  are  county 

'  Taylor  v.  Runyan,  9  Iowa,  522 ;  8  Mass.  99 ;  Hunt  v.  Hunt.  44  N.  Y. 

Bean  v.  Briggs,  4  Iowa,  404 ;  Pearsall  27 ;  1  Robinson's  Practice,  249. 
«.  Dwight,  2  Mass.   84;   Holmes  v.         ^Carey^.  Cin.  &  Chi.  R.  R.  Co.,  5 

Broughtou,  10  Wend.  75;  1  Chitty  on  Iowa,  357;   Bean  v.  Briggs,  4  Iowa» 

Plead.  247  et  seq.;  Carey  t>.  Cin.«&Chi.  464;  Pearsall  v.  Dwight,  2  Mass.  34; 

R  R.  Co  ,  5  Iowa,  357.  Holmes  v.  Broughton.  10  Wend.  75 ; 

"Carey  v.  Cin.  &  Chi.  R.  R.  Co.,  5  Walker  v.  Maxwell,  1  Mass.  103;  Col- 
Iowa,  357 ;  Bean  v.  Briggs.  4  Iowa,  lett  v.  Keith,  2  East.  260 ;  Legg  v.  Legg, 
464;  Pearsall  v.  Dwight,  2  Mass.  84;  8  Mass.  99. 

Holmes  v.  Broughton,  10  Wend.  75;         *  Ingraham  v.  Hart,  11  Ohio,  255. 
Walker  v.  Maxwell,  1  Mass.  104;  Col-         » FeHows  v.  Pres.  &  Trust,  of  Meii. 

lett  V.  Keith,  2  East,  260 ;  Legg  v.  Legg,  asha,  1 1  Wis.  558. 


TJNDEE    THE    COMMON    AND    STATE    LAWS.  119 

judges,  or  that  they  have  lawful  authority  to  administer  oaths, 
or  exercise  particular  functions,  except  as  to  notaries  public, 
whose  acts  and  seals  are  everywhere  recognized.  ^ 

Ordinarily  there  must  be  some  evidence  of  the  existence  of 
such  officers,  and  of  the  official  functions  and  powers  of  those 
who  hold  them.     Their  authority  to  act  must  be  authenticated. ^ 

Therefore,  where  verification  of  pleadings  is  required  by  la^v, 
an  affidavit,  or  what  purports  to  be  one,  without  more,  to  a  plead- 
ing purporting  to  have  been  made  in  another  State  before  a 
county  judge,  with  no  authentication  of  his  signature  or  other 
evidence  of  his  official  existence  or  of  its  genuineness,  such 
pleading  will  be  treated  as  an  unsworn  pleading,  and  may  be  so 
regarded  in  responding  to  the  same  by  the  adverse  party. ^ 

Common  Law.  And  although,  in  regard  to  foreign  laws,  it 
is  a  principle,  if  nothing  to  the  contrary  is  shown,  that  the  com- 
mon law  of  another  State  is  j)resumed  to  be  the  same  as  the  com- 
mon law  of  i\\Q  forum  where  brought  in  question,  yet  this  pre- 
sumption as  to  the  laws  of  a  State  does  not  exist  in  regard  to  its 
statute  laws.  There  are  some  cases  tending  towards  such  a  con- 
clusion, but  in  the  language  of  Rapallo,  J.,  in  McCulloch  v. 
Norwood^  "  there  is  no  authoritative  decision  to  that  effect."*  If 
there  were  any  reason  to  doubt  upon  the  subject,  we  may  regard 
this  decision,  which  is  so  recent  as  in  1874,  and  by  authority  so 
high  and  learned,  as  putting  such  doubt  at  rest,  and  as  settling 
the  doctine  against  such  presumption  as  regards  statute  laws. 
This  unwritten  or  common  law  of  a  State  may  also  be  proven  by 
the  books  of  reports  of  cases  adjudged  in  its  courts.  ^ 

lY.     Proof  of  State  Laws  as  at  Common  Law  and  Under 
State  Statutes. 

The  method  of  making  proof  of  the  laws  of  the  States  in  the 
courts  of  others,  prescribed  by  the  act  of  Congress  of  25  th  of 
May,  1790,  is  merely  cumulative,  and  is  not  inhibitory  of  such 

'  Walsh  «.  Dart,  12  Wis.  635.  decision  in  the  same  case  made  in  the 

'  Fellows  D.  Pres.  &  Trust,  of  Men-  court  below  and  reported  in  4  Jones 

asha,  11  Wis.  558.  &  Spencer,  180.     See,  also,  Hull  v. 

^Fellows  «.  Pres.  &  Trust,  of  Men-  Augustine,  23  Wis.  383;  1  Robinson's 

asha,  11  Wis.  558.  Practice,  25. 

4  58  N.  Y.  562,  567,  modifying  the  *  Cragin  v.  Lamkin,  7  Allen,  395. 


120        INTER-STATE  PROOF  OF  RECORDS. 

other  proof  within  the  rules  of  law,  or  as  may  be  tolerated  as 
more  con veu lent  by  any  of  the  States.* 

The  proof  is  to  the  court.  The  sufficiency  of  proof  of  foreign 
laws,  as  also  their  pertinency  to  the  issue,  and  their  le:;al  inter- 
pretation and  effect,  are  all  matters  for  the  decision  of  the  court, 
and  not  the  jury.'  But  although  the  proof  is  to  be  made  to  the 
court,  that  it  may  judge  of  the  legal  sufficiency  of  the  proof,  and 
of  the  pertinency  and  admissibility  of  the  laws  so  relied  upon, 
yet  such  laws  of  other  States  are  to  be  proven  as  facts.-'' 

The  States  may  relax,  but  not  increase  the  requirements  of  the 
Act  of  Congress.  Thus  where,  as  in  Iowa,  a  statute  exists  allow- 
ing such  proof  of  statute  laws  of  another  State  to  be  made  by 
production  of  printed  copies  thereof,  purporting  to  be  made  and 
published  under  authority  of  such  other  State,  it  is  held  that  such 
proof  is  admissible  as  presumptive  evidence  of  the  law.*  And 
proof  of  the  unvjriiten  laws  of  another  State  may  be  made  by 
the  testimony  of  persons  familiar  with  such  laws.'  And  so  it 
may  be  proved,  as  in  Iowa,  by  persons  familiar  with  courts  and 
their  practice  of  other  States,  that  books  of  statute  law  produced, 
are  regarded  and  acted  on  by  the  courts  of  another  State  as  stat- 
ute laws  thereof.^  And  so  may  the  practice  and  uses  of  such 
courts  be  proven  in  like  manner  by  testimony  of  persons  well 
acquainted  therewith.' 

'  LatereU  v.  Cook,  1  Iowa,  1 ;  Rayn-  v.  Wash,  Breese,   16.       But  though 

ham  V.  Canton,  3  Pick.  293 ;  Elmore  provable  as  facta,  their  construction 

«j.  Mills,  1  Hayw.  (N.  C.)  359;  Kean^.  is  for  the  court,  as  also  the  fact  of 

Rice,  13  S.  «&  R.  203 ;  Biddis  i\  James,  their  being   such,  or  sufBcienc}^  of 

6  Binn.  321 ;  Ohio  v.  Hinchraan,  27  their  proof.    De  Sobr}'  v.  De  Laistre 

Penn.  St.  479;  Pepoon  t.  Jenkins,  2  2  Ilarr.  &  J.  191;  Moore  v.  Gwynn, 

John.  Cases,  119 ;  Hackett  r.  Bonnell,  5  Ired.  187 ;  Tyler  p.  Trabue,  8  B.  Mon. 

16  Wis.  496;  1  Greenl.  Ev.  §  50.5.  306;  Pickard  v.  Bailej",  26  N.  H.  152; 

■■'  Moore  v.  Gwynn,  5  Ired.  187 ;  De  Monroe  v.  Douglass,  5  N.  Y.  447. 
Sobry  v.  De  Laistre,  2  Harr.  «fe  J.  181 ;  *  Webster  v.  Russ,  23  Iowa,  269. 
Tyler  v.  Trabue,  8  B.  Mon.  206 ;  Pick-  See,  also,  to  the  same  effect,  Commer- 
ard  V.  Bailey,  26  N.  H.  153 ;  Monroe  cial  «fc  Farmer's  Bank  v.  Patterson,  2 
«.  Douglass,  5  N.  Y.  447 ;  1  Robinson's  Cr.  C.  C.  346;  Rockville  &  Washing- 
Practice,  257.  ton  Turnpike  Road  Co.  o.  Andrews,  3 

"  Steplienson  v.  Bannister,  3  Bibb,  Cr.  C.  C.  451. 

363;    Davis    t.  Curry,  2   Bibb,  238;  •  Webster  t.  Russ,  23  Iowa.  269. 

Ripple  V.  Ripple,  1  Rawle,  386;  Con-  *  Greason  v.  Davis,  9  Iowa,  219. 

sequa  v.  Willings,   Pet.   C.   C.  225;  'Webster  v.  Russ,   23  Iowa,  269; 

Frith  V.  Sprague,  14  Mass.  435 ;  Cook  Crafts  v.  Clark,  38  Iowa,  237. 
«.  Wilson,  Litt.  Sel.  Cases,  437 ;  Mason 


UNDER    THE    COMMOjS^    AND    STATE    LAWS.  121 

The  States  may  not  require  other  proof  than  that  provided  by 
Congress.  But  no  State  may  make  a  law  requiring  a  different 
method  of  authentication  of  such  inter-State  acts,  records,  and 
documents  than  those  provided  and  contemplated  by  the  provi- 
sions of  the  Constitution  above  referred  to,  and  the  acts  of  Con- 
gress made  in  pursuance  thereof. 

Unwritten  law  provable  by  books  of  reports.  The  nnwritten 
or  common  law  of  another  State  may  be  proven  by  the  books  of 
reports  of  cases  adjudged  in  its  courts.* 

Private  Laws.  Private  laws  of  a  State  are  matters  of  fact,  and 
when  offered  in  evidence  in  the  courts  of  another  State  or  in  a 
court  of  the  United  States,  are  to  be  proven  as  such  in  the  ordi- 
nary manner.     Official  certificates  thereof  are  not  available. ^ 

Public  Laws.  The  public  laws  of  a  State  may  be  read  in  evi- 
dence in  other  States  by  being  brought  within  the  requisites  of 
the  act  of  Congress  in  that  respect,  and  will  be  taken  notice  of 
without  such  requisites  in  the  Federal  courts;  but  private  laws 
and  special  ])roceeding3  are  to  be  proven  as  facts.* 

Foreign  Laws.  In  the  proof  of  foreign  laws,  the  evidence  is 
to  the  court  and  not  to  the  jury,  and  they  must  be  proved  as 
facts.  ^ 

Printed  volumes.  Printed  volumes  of  the  statutes  purporting 
to  be  such  are  receivable  as  prima  facie  evidence  of  the  statute 
laws  of  another  State. ^  Such  volumes,  certified  to  by  the  secre- 
tary of  State,  under  seal  of  State,  as  correct  copies  of  the  statutes 
of  a  State,  copied  from  the  original  rolls,  are  admissible  as  suffi- 
cient evidence  of  genuineness  under  the  act  of  Congress.^ 

Clerk's  Certificate.  The  form  of  the  clerk's  certificate  and  man- 
ner of  certifying  of  a  record  of  a  court  of  one  State  for  use  in 
the  courts  of  another  State,  is  to  be  in  conformity  to  the  laws  of 
the  State  where  the  judgment  is  rendered  and  where  the  certifi- 
cate is  made,  and  the  certificate  of  the  judge,  chief  justice  or  pre- 
siding magistrate,  as  the  case  may  be,  that  the  same  is  in  due 
form  of  law,  is  conclusive  on  that  subject.'     Therefore,  it  is  not 

'■  Cragin  v.  Lamkin,  7  Allen,  395.  »  Emery  v.  Berry,  28   N.  H.  473 ; 

"Leland  v.  Wilkinson,  6  Pet.  317;  Dixon  v.  Tliatcher,  14  Ark.  141;    1 

I'Greenl.  Ev.  §§  480,  481.  Robinson's  Practice,  253. 

'Ibid.  6  Wilson  v.  Lazier,  11  Gratt.  477; 

«  Pickard  v.  Bailey,  26  N.  H.  152;  Sisk«.  Woodruff,  15  111.  15. 

Story's  Conf.  of  Laws.  g§  G38,  688;  'Simons  v.   Cook,  29  Iowa,  324; 

1  Greeul.  Ev.  §  486.  Brown  v.  Adair,  1  Stew.  &  Port.  49. 


132        INTER-STATE  PROOF  OF  RECORDS. 

a  fatal  objection  that  the  clerk's  certificate  is  without  a  seal,  if 
the  judge  certifies  that  it  is  in  due  form  of  law.^  The  act  of 
Congress  merely  requires  the  seal,  if  there  be  a  seal.  By  the 
local  law  of  Iowa,  the  certificate  of  a  judge  is  sufficient.  It  need 
not  be  that  of  tJie  judge  chief  jvstice  or  presiding  officer.' 

Presumption  as  to  Laws  of  other  States.  In  the  trial  of  a 
cause  which  involves  the  common  law  of  another  State,  the  court 
will,  in  the  absence  of  proof  of  what  such  law  is,  presume  it  to 
be  the  same  as  the  law  of  the  forum  where  the  cause  is  being 
tried.'  But  this  presumption  does  not  extend  generally  to 
statute  laws,  or  laws  of  a  penal  nature,  or  embodying  strict  pro- 
visions or  forfeitures  against  usury.* 

The  only  presumption  affirmatively  entertained  by  courts 
against  the  limits  of  jurisdiction  of  courts  of  another  State  is, 
that  the  same  is  to  be  restrained  within  the  limits  of  natural 
justice.' 

V.    Proof  of  PROcEEDmos  of  Justice  of  the  Peace. 

As  a  general  principle  it  may  be  taken  that  the  method  of  evi- 
dencing the  proceedings  of  justices'  courts  among  the  several 
States  is  not  within  the  act  of  Congress,  but  was  intended  to  be 
left  as  at  common  law  and  the  statutory  regulations  of  the  States 
themselves;  therefore,  such  evidence  should  be  conformed  to  the 
law  of  the  State  wherein  the  proceedings  are  to  be  used,  when 
ofiered  in  evidence  in  the  court  of  a  different  State  than  that 
wherein  the  proceedings  were  had." 

Iowa  Statute.  In  Iowa  a  State  statute  admits  such  proceed- 
ings in  eridence  from  another  State,  when  authenticated  by  the 
official  certificate  of  the  justice  of  the  peace  of  such  other  State, 
certifying  the  records  and  proceedings,  and  supported  by  the  offi- 

'  Simons  v.  Cook,  29  Iowa,  324.  State  has  adopted  all  of  our  statutes. 

*  Revision  of  Iowa  of  18C0,  §4058;  and,  therefore,  we  must  have  proof 
Code  of  Iowa  of  1873,  §  3713;  Later-  before  we  can  know  that  they  have 
ett  ».  Cook,  1  Iowa,  1.  passed  any  statute."    See,  also,  Ker- 

3  Birdsey  v.  Butterfield,  34  Wis.  52 ;  mott  v.  Ayer,  11  Mich.  181 ;  People  v. 

Ellis  e.  Maxson,  19  Mich.  186;  1  Rob-  Lambert,  5  Mich.  349;   Whitford  ». 

inson's  Pr.  250,  251.  Panama  R.  R.  Co.,  23  N.  Y.  465. 

*  Hull  ».  Augustine,  23  Wis.  383.  '  Mackay  c.  Gordon,  34  N.  J.  289. 
In  Ellis  t).  Maxson,  19  Mich.  186,  the  «  Gny  v.  Lloyd,  1   G.  Greene,  78; 
court  say :  "  We  certainly  cannot  pre-  Railroad  Bank  v.  Evans,  32  Iowa,  202 ; 
sume  that  the  Legislature  of  another  1  Greeul.  Ev.  §§  505,  513. 


PROOF  OF  RECORDS  OF  OFFICE  BOOKS.      12^ 

cial  certificate  of  the  clerk  of  a  court  of  records  of  the  county 
of  the  justice's  residence,  stating  that  the  justice  is  an  acting 
justice  of  the  peace  of  that  county  and  that  the  signature  to  his 
certificate  is  genuine.  ^  Such  certificate  is  also  held  to  be  sufii- 
cient  if  made  by  the  successor  of  the  justice  wlio  rendered  the 
judgment.  2  The  statement  as  to  the  official  character  of  the 
justice  should  have  reference  to  the  date  of  his  proceedings  thua 
authenticated. 

YI.     Proof  of  Eecords  of  Office  Books. 

The  records  and  exemplifications  thereof  of  ofiice  books  of 
public  ofiices  of  the  States  and  Territories,  which  do  not  pertain 
to  any  court,  are  provable  and  admissible  in  evidence  in  the  sev- 
eral States,  in  virtue  of  the  act  of  Congress  of  March  27,  1804, 
by  attestation  of  the  keeper  of  such  records  or  books,  with  seal 
of  his  ofiice  annexed  thereto,  if  a  seal  there  be,  together  with  a 
certificate  of  the  presiding  justice  of  the  county  or  district  in 
which  the  ofiice  is  kept,  or  certificate  of  the  governor,  or  secretary 
of  State,  or  chancellor,  or  keeper  of  the  seal  of  State,  that  the 
attestation  is  in  due  form  and  is  by  the  proper  officer.  But  if 
the  certificate  be  that  of  a  presiding  justice,  it  must  also  be 
authenticated  by  certificate  of  the  clerk  or  prothonotary  of  the 
court,  under  seal  of  his  office,  that  such  presiding  judge  is  duly 
commissioned  and  qualified.  And  if  the  certificate  is  by  the 
governor,  secretary  of  State,  chancellor,  or  keeper  of  the  great 
seal  of  State,  in  such  case  it  must  be  sealed  with  said  seal.  ^ 

» Iowa  Code  of  1873,  §  3714;  Revis-  ^  Railroad  Bank  v.  Evans,  32  Iowa, 
ion  of  1860,  §  4059 ;  Railroad  Bank  v.      203. 

Evans,  32  Iowa,  202.  s  2  U.  S.  Stat,  at  Large,  298,  §§  1,  2; 

R.  S.  of  U.  S.  2d  Ed.  §  906. 


124        FOREIGN   ATTACHMENT   AND   GARNISHMENT. 


OHAPTEK    XII. 

PEOCEEDINGS   BY  FOREIGN   ATTACHMENT  AND   0AENI8HMENT. 

I.    The  Attachment. 
II.    Process  of  Garnishment. 

I.    The  Attachment. 

Proceedings  In  Hem.  Proceedings  by  writ  of  attachment 
against  the  property  of  non-resident  and  absent  persons  are 
authorized  by  law  in  most,  if  not  all,  of  the  States.  Such  pro- 
ceedings being  in  rem  are  a  means  of  subjecting  the  property, 
rights  and  credits  of  non-residents  and  absent  debtors,  or  other 
non-resident  or  absent  persons,  against  whom  a  right  of  action 
exists,  to  the  plaintiff's  demand.  The  proceeding  is  against  the 
property,  rights  and  credits,  and  not  the  person,  of  the  defendant 
debtor,  and,  therefore,  no  personal  judgment  can,  ordinarily,  be 
rendered  against  him.i 

Appearance  of  Defendant.  If,  however,  the  defendant  appears 
in  court  to  the  action  or  proceeding,  or  is  personally  served  with 
process  within  tlie  territorial  jurisdiction  of  the  court,  then  the 
proceeding  becomes  also  personal,  and  personal  judgment  may 
be  rendered  against  him  as  in  other  cases,  if  a  right  to  judgment 
be  made  out;^  but  this  does  not  prevent  judgment  of  condemna- 
tion against  the  property  attached,  if  proper  cause  is  shown 
therefor.  3  If  no  property  is  found  and  no  personal  service  or 
appearance,  the  suit  is  at  an  end.* 

'Thompson  ®.  Emmert,  4  McLean,  'Toland  «.  Sprague,  12  Pet  300; 

06 ;  Lincoln  v.  Tower,  2  McLean,  473 ;  Irvine  v.  Lowry,  14  Pet.  293 ;  Pollard 

"VN'arren  Manf.  Co.  v.  -(Etna  Ins.  Co.,  2  r.  Dwight,  4  Cr.  421 ;   Hendrick  v. 

Paine,  502 ;  Hendrick  r.  Brandon,  9  Brandon,  9  Iowa,  319. 

Iowa,  319;  Courtney  c.  Carr,  C  Iowa,  ^  Xoland  v.  Sprague,  12  Pet.  800; 

238;  Banta  v.  Wood,  32  Iowa.  469;  Cooperu.  Smith,  25  Iowa,  269. 

Pennoyer  v.  Nefl",  5  Otto,  714;  Drake  *  Courtney  v.  Carr,  0  Iowa,  238. 
on  Attachment,  §  5. 


THE    ATTACIIMEJ^T.  125 

Attachment  Levy.  If  goods  and  chattels,  rights  or  credits,  be 
levied  on  by  virtue  of  the  writ  of  attachment,  they  are  thereby 
placed  within  the  custody  of  the  law  to  abide  the  event  of  the 
suit  or  attachment  proceeding,  and  a  lien  thereon  is  created  by 
the  levy  in  favor  of  the  plaintiff  for  the  amount  he  may  recover 
in  the  suit.^  If  the  levy  be  on  real  property,  a  like  lien  attaches 
to  the  title  thereof,  and  although  the  right  to  possession  thereof 
does  not,  by  virtue  of  the  levy,  vest  in  the  officer,  as  in  levies  on 
personalty,  yet  the  title  to  such  real  estate  is  thereby  placed  in 
legal  custody  to  abide  the  proceedings  in  the  cause. 

Condemnation  and  Sale.  And  if  condemnation  thereof  and 
order  of  sale  be  made,  the  same  relates  back  in  effect  to  tlie  date 
of  the  levy,  and  title  passes  in  case  of  sale  as  from  the  date  of 
levy.  3 

Only  the  Property  Levied  On  is  Bound,  if  In  Rem.  Although 
in  point  of  practice  such  proceedings  vary  in  different  jurisdic- 
tions according  to  the  statutes  of  the  several  States,  the  particu- 
lars of  which  it  is  not  our  purpose  in  this  treatise  to  give,  yet 
one  great  principle  is  common  to  them  all,  that  so  far  as  the  pro- 
ceeding is  in  rem  it  binds  only  that  property  of  defendant,  which 
by  levy  of  the  process  of  the  court,  is  placed  within  the  custody 
of  the  law  and  is  by  subsequent  judgment  of  condemnation  and 
sale  ordered  by  the  court  to  be  sold.^ 

The  Sale,  if  Regular  Carries  Title.  But  judgment  of  con- 
demnation, and  sale  made  thereunder  by  order  of  the  court,  of 
the  property  thus  placed  within  its  jurisdiction  and  the  custody 
of  the  law,  carries,  if  valid,  the  title  and  right  of  property, 
divesting  it  out  of  the  defendant  and  vesting  it  in  the  purchaser, 
by  operation  of  law,  and  is  evidence  of  ownership  and  title 
wherever  brought  in  question,  whether  within  or  without  the 
territorial  limits  of  the  State;*  for,  although  the  proceeding  can- 
not reach  the  person  of  the  defendant,  who  has  had  no  day  in 

'  Stiles    V.   Davi3,    1    Black,   101 ;  Lincoln  v.  Tower,  3  McL.  473 ;  TVarreu 

Hacker  o.  Stevens,  4  McL.  535 ;  Ken-  Manf.  Co.  v.  ^tna  Ins.  Co.,  3  Paine, 

nedy  v.  Brent,  6  Cr.  187 ;  Drake  on  503 ;  Miller  v.  Dungan,  3G  N.  J.  Law, 

Attachment,  §  334.  31 ;  Clymore  v.  Williams,  77  111.  618; 

2  Laird  v.  Dickerson,  40  Iowa,  G65.  Fitzsimmons  v.  Marks,  66  Barb.  333; 

^  Livingston  v.  Smith,  5  Pet.  89 ;  Drake  on  Attachments,  §  5. 

Boyd  v.  Urquhart,  1   Sprague,  433;  ^  Moore  v.  Chicago,  R.  I.  &  P.  R.  R. 

Westervelt  v.  Lewis,  3  3IcL.  511 ;  Rio-  Co.,  43  Iowa,  885. 
ketts  V.  Henderson,  3  Cr.  C.  C.  157; 


126         FOREIGN    ATTACHMENT    AND    GARNISHMENT. 

court,  it  acts  upon  his  title  to  the  property,  whioli,  as  an  attribute 
thereof,  is  present  in  the  jurisdiction  where  is  found  the  prop- 
erty itself,  and  is  in  like  manner,  as  is  the  property,  subject  to 
the  local  law  and  jurisdiction  of  the  court. 

Thus,  when  proceedings  are  merely  in  rem,  and  the  property 
proceeded  against  is  within  the  State  and  jurisdiction  of  the 
court,  and  is  so  lev^ied  on  or  seized  by  the  proper  officer  as  to 
place  the  same  in  custody  of  the  court  and  the  law  authorizing 
such  procedure,  and  in  accordance  with  such  law,  condemnation 
and  sale  is  made  of  the  property  to  satisfy  ascertained  liability 
or  liabilities,  then  title  thereto  passes  as  against  non-resident  de- 
fendants as  owners,  although  not  made  parties  defendant  by  any 
'personal  service  of  process  served  within  the  State,  and  although 
no  appearance  be  made  in  the  cause,  if  such  publication  or  other 
constructive  service  of  notice  be  made  or  given  within  the  State 
as  the  laws  thereof  in  such  cases  require  and  recognize  as  suffi- 
cient. * 

The  Judgment  in  rem,  will  Not  Sustain  an  Action  Thereon. 
Although  a  judgment  in  such  proceeding  is  not  fully  satisfied 
by  a  sale  of  the  property  attached,  yet  if  it  is  exclusively  in  rem 
no  action  can  be  maintained  or  judgment  in  any  suit  be  had 
thereon  for  what  remains  unpaid ;2  but  if  brought  in  question  as 
•evidence,  although  in  a  diiferent  State,  it  is  conclusive  to  prove 
what  it  purports  to  be,  and  has  the  same  force  and  effect  as  in 
the  State  where  rendered,  if  authenticated  as  the  act  of  Congress 
in  that  respect  directs. 

Personal  Judgment  Void.  No  personal  judgment  w'ill  be  ot 
any  validity  in  such  cases  against  a  defendant  to  charge  him  per- 
sonally within  the  same  State,  or  elsewhere,  or  as  a  basis  for  pro- 
cess on  which  other  property  may  be  levied  and  sold.^  Nor  will 
personal  service  or  publication  made  on  the  defendant  in  a  dif- 
ferent State  be  of  any  validity  as  a  basis  for  such  personal  judg- 
ment, provided  defendant  does  not  appear;  for  State  laws  have 
no  extra  territorial  force,  and  no  such  service  or  publication  made 
in  another  State  is  of  any  validity  whatever,  but  is  simply  void,^ 

'Pennoyer   v.   Neff,  5  Otto,    714;  McL.  262;   Cooper  v.  Reynolds,  10 

Drake  on  Attachment,  §  5.  Wall.  308 ;  Drake  on  Attachment,  §  5. 

'Warren  Manuf.  Co.  t.  ^tna  Ins.  'Pennoyer   v.  Netf,    5    Otto,  714; 

Co.,  3  Paine,  502 ;    Lincoln  t.  Tower,  King  v.  Vance,  46  Ind.  246 ;  Drake  on 

2  ^IcL.  4T3 ;  Thompson  v.  Emmert,  4  Attachment,  §  5. 

McL.  96;   Boswell   v.  Dickerson,  4  *Ibid. 


PROCESS    OF    GARNISHMENT.  127 

Thus,  in  a  j^roceeding  by  foreign  attachment  in  the  courts  of  a 
State  against  the  property  therein  of  a  citizen  of  another  State, 
the  proceeding  being  in  rem,  with  publication  of  notice,  the 
levy  on  the  writ  of  attachment  of  personal  property,  though 
to  the  amount  in  value  of  the  claim,  or  subsequently  recovered 
judgment,  does  not  work  a  satisfaction  thereof.  And  if  the 
defendant  therein  personally  appears  and  makes  defense,  and  per- 
sonal judgment  is  thereupon  rendered  against  him,  such  levy  is 
no  defense  to  an  action  at  law  on  the  judgment  brought  in 
another  State,  although  it  may  not  appear  what  disposition  was 
made  of  the  property  which  was  levied  on  by  the  attachment  in 
the  original  action.  ^ 

II.     Peocess  of  Garnishment, 

Creature  of  the  Statute.  Proceedings  by  garnishment,  or 
trustee  process,  are  proceedings  in  rem  in  the  nature  of  an 
attachment,  and  are  most  usually  resorted  to  in  aid  of  the  more 
ordinary  attachment  process.  Like  the  attachment  proceeding 
itself,  they  are  the  creature  of  the  statute,  only  existing  where 
provided  for  by  statutory  enactment,  and  then  only  to  the  extent 
and  in  the  manner  there  by  law  allowed. 

They  are  designed  to  discover  and  subject  the  moneys,  debts, 
and  property  of  a  debtor  which  may  be  in  the  hands  of  a  third 
party,  or  may  be  owed  by  him  to  the  debtor,  to  the  process  of 
attachment,  in  cases  where  the  property  may  be  unknown  to  the 
attaching  officer  as  belonging  to  the  debtor,  and  also,  to  divest 
the  payment  of  moneys  owing  the  defendant  debtor  and  apply 
the  same  to  the  payment  of  the  debt  or  liability  due  the  attach- 
ing creditor  by  a  means  not  within  the  reach  of  the  usual  process 
of  attachment.  2 

These  proceedings  come  within  the  scope  of  our  inquiry  only 
60  far  as  regards  the  proceedings  by  foreign  attachment.  That 
is.  Firsts  where  the  plaintiff  seeks  to  levy  and  sell  by  judicial 
authority  in  one  State  the  property  therein  situated  of  a  citizen 
or  resident  of  another  State,  or  to  seize  upon  and  so  apply  the 
rights  and  credits  of  such  foreign  resident  or  citizen  found  in  the 

'Maxwell  tJ.  Stewart,  22  "Wall.  77;  « £)i.ake  on  Attachment,  §  451  et 

8.  C,  21  Wall.  71 ;  Drake  on  Attach-     %eq. 
ment,  §  223. 


k 


128         FOREIGN    ATTACHMEMT    AND    GARNISHMENT. 

possession  or  control,  or  owing  from  a  citizen  or  resident  of  the 
State  wherein  the  proceeding  is  prosecuted.  Second,  when  by 
snch  proceeding  it  is  sought  to  subject  property,  credits  or  lia- 
bilities due  to  such  debtor  from  a  non-resident  of  the  State  where 
the  proceeding  is  pending,  who  is  temporarily  found  within  such 
State  and  there  served  with  the  garnishee  or  trustee  process. 

How  far  this  garnishee,  or  trustee  process,  may  be  maintained 
in  the  courts  of  one  State  against  a  citizen  or  resident  of  another 
State,  found  and  served  with  the  garnishee  process  witliin  the 
State  where  the  proceeding  is  being  prosecuted,  is  a  question 
upon  which  the  rulings  are  not  uniform ;  but  the  better  doctrine 
seems  to  be  that  the  procedure  being  in  rem,  and  against  the 
property  itself,  or  thing  to  be  subjected,  it  follows  therefrom  that 
such  subject  matter,  and  the  person  garnished  as  well,  must  be 
within  the  jurisdiction  of  the  court,  or  else  it  cannot  be  reached; 
hence,  an  inhabitant  of  another  State  is  not  subject  to  liability  on 
garnishee  process  in  the  courts  of  a  different  State  than  that  of 
his  residence,  on  account  of  property  or  interests  in  his  posses- 
sion in  such  other  State,  none  of  which  is  within  the  State  where 
he  is  garnished;  nor  for  debts  or  liabilities  payable  in  such  otlier 
State.  For,  unless  the  property  is  within  the  jurisdiction  of  the 
court,  the  garnishee  cannot  be  made  liable,  for  he  is  only  liable 
to  the  court  as  he  is  to  his  creditor,  or  to  the  owner  of  the  prop- 
erty, and  if  not  bound  to  deliver  or  to  pay  to  the  one,  he  is  not 
liable  to  respond  to  the  other  by  so  delivering  or  paying  in  a 
different  State  than  where  his  duty  to  his  creditor,  or  the  owner 
of  the  property,  requires  him  to  pay  or  deliver;  his  contract  and 
liability  cannot  be  enlarged  or  changed  by  the  court;  and  if  he 
discovers  by  his  answer  property  which  is  in  his  control  in  a  dif- 
ferent jurisdiction,  the  court  is  powerless  to  reach  it  on  the  one 
hand,  and  he  is  not  bound  to  bring  it  within  the  jurisdiction  on 
the  other,  and  cannot  be  compelled  so  to  do;  nor  can  he  be 
rendered  liable  to  a  money  judgment  instead,  for  he  owes  no 
money,  and  his  liability  cannot   be  changed.  ^     The  principle 

'Baxter©.  Vincent,  6  Vt.  614;  Kid-  combe,    21    Pick.    263;    Sawyer    v. 

der  V.  Packard,  13  Mass.  81;  Ray  v.  Thompson,  24  N.  H.  510;  Tingley  r. 

Underwood,  3  Pick.  802;  111.  Cent.  R  Bateraan,  10  Mass.  343;  Bates  v.  New 

R.  R.  Co.e.  Cobb,  48  III.  402;  Jones  Orleans.  Jack.  &  G.  W.  R.  R.  Co.,  4 

«.  Winchester,  6  N.  H.  497;  Hart  v.  Abbott,  Pr.  72;  Gold  v.   Housatonic 

Anthony,  15  Pick.  445;  Nye  v.  Lis-  R.  R.  Co.,  1  Gray,  424;  Danforth  r. 


PROCESS    OF    GARNISHMENT.  129 

applies  alike  to  natural  persons  and  corporate  bodies  non-resident 
of  the  State  wherein  they  are  garnished,  i  Nor  is  the  rule  altered 
by  the  fact  that  the  personal  residence  of  the  foreign  corporation 
is  vnthin  the  jurisdiction ;2  or  that  the  books  of  the  corporation 
are  kept  therein. ^  Or  that  the  corporation  garnished  is  in  pos- 
session of  and  is  operating  a  railroad  as  lessee  within  the  juris- 
diction; it  is  nevertheless  a  foreign  corporation,  and  cannot  be 
compelled  to  bring  its  means,  or  property  held  by  it,  within  the 
jurisdiction,  or  to  pay  there  if  the  liability  to  pay  is  to  pay  at  a 
place  in  another  State.'* 

If,  however,  the  corporation  be  chartered  by  two  or  more 
States,  then  it  is  domestic  in  each,  and  may  be  garnished  in 
either. 

And  w^here  in  such  proceeding  of  foreign  attachment  the  pro- 
cess of  garnishment  is  resorted  to  by  the  plaintiflp,  by  which  a 
debtor  of  the  defendant  is  garnished  and  is  subjected  to  a  judg- 
ment in  favor  of  the  plaintiff  for  the  debt,  jurisdiction  in  rein 
of  the  subject  matter  thereof  having  legally  attached  in  the  court, 
then  the  judgment  in  rem  condemning  the  debt  and  ordering 
its  payment  to  the  plaintiff  is  conclusive  and  cannot  be  collater- 
ally attacked  in  the  same  or  in  a  different  State,  and  is  a  good 
defense  to  an  action  brought  thereafter  by  the  original  creditor 
upon  the  original  debt  or  cause  of  action.  6 

In  some  States  the  statutes  provide  for  personal  service,  at  the 
option  of  plaintiff,  upon  the  defendant  in  another  State  in  lieu 
of  the  customary  puhlication  in  cases  of  foreign  attachment, 
and  others  where  the  proceeding  is  in  rem.  It  is  not  claimed 
that  by  virtue  thereof  any  personal  jurisdiction  is  obtained  over 
the  defendant,  but  it  is  held  that  such  personal  service  in  another 

Penny,  3  Met.  564;  Bait.  &  Ohio  R  564;  Bait.  &  Ohio  R.  R.  Co.  v.  Galla- 

R.  Co.  V.  Gallahue,  13  Gratt.  655 ;  Mil-  hue,  13  Gratt.  655. 

ler  V.  Hooe,  3  Cr.  C.  C.  ^23 ;  Drake  on  ^  (joid  v.  Housatonic  R.  R.  Co.,  1 

Attachment,  §  474.  Gray,  424;  Danforth  v.  Penny,  3  Met. 

'Danforth  v.  Penny,  3  Met.  564;  564;  Bait.  &  Ohio  R.  R.  Co.  r.  Galla- 

Gold  V.  Housatonic  R.  R.  Co.,  1  Gray,  hue,  13  Gratt.  655 ;  Smith  v.  Boston, 

434;  Bait.  &  O.  R.  R.  Co.  v.  Gallahue,  C.  &  M.  R.  R.  Co.,  33  K  H.  337. 

12  Gratt.  655 ;  Smith  v.  Boston,  C.  &  *  Bait.  &  Ohio  R.  R.  Co.  «.  Galla- 

M.  R.  R.  Co.,  33  N.  H.  337 ;  Larkin  v.  hue,  12  Gratt.  655 ;  Smith  v.  Boston, 

Wilson,  106  Mass.  130 ;  Drake  on  At-  C.  &  M.  R.  R.  Co.,  33  N.  H.  337. 

tachment,  §^  478.  ^  Moore  v.  C,  R.  I.  &  P.  R.  R.  Co., 

^  Gold  V.  Housatonic  R.  R.  Co.,  1  43  Iowa,  385 ;  Bait.  &  Ohio  R.  R.  Co. 

Gray,  334;  Danforth  v.  Penny,  3  Met.  x.  May,  25  Ohio,  St.  847. 
9 


130         FOREIGN    ATTACHMENT    AND    GARNISHMENT. 

State  obviates  the  necessity  of  publication,  and  substantially 
'effects  the  same  purpose.  ^  Now,  however  ample  the  power  of 
the  legislature  may  be  to  reach  through  the  courts,  the  control 
of  property  situated  within  the  State,  and  to  give  validity  to  the 
acts  done  in  view  thereof,  as,  for  instance,  notice  of  publication, 
published  within  the  State,  yet  it  may  be  a  matter  of  serious 
doubt  as  to  their  power  to  give  effect  to  acts,  as  service,  for  in- 
stance, on  a  defendant,  done  and  performed  outside  the  State  and 
within  the  limits  of  another  sovereignty.  If  such  service  in 
another  State  is  void,  then  the  proceedings  resting  thereon  are 
void  on  the  same  principle  that  they  are  void  when  resting  on  a 
void  order  of  publication;  and  it  is  held  that  the  making  of  an 
order  of  publication  against  a  non-resident  defendant  is  a  judicial 
act,  and  cannot  be  done  by  a  commissioner  or  other  officer  who 
is  interested  in  the  case  as  the  attorney  of  the  defendant;  that 
the  officer  granting  such  order  must  deliberate,  decide,  adjudge 
as  to  the  propriety  of  it,  and  that  therefore  an  attorney  in  the 
cause  is  utterly  disqualified  from  performing  these  judicial  func- 
tions in  any  manner  pertaining  to  such  suit;^  so  that  when  an 
order  or  decree  is  made  in  a  cause  Against  a  defendant  who  has 
not  appeared  therein,  and  without  any  other  service  than  an 
order  of  publication  made  under  such  circumstances,  it  stands 
or  falls  with  the  order  of  publication,  and  these  being  a  nullity, 
as  they  are  when  thus  made,  the  decree  is  void.^  Such  excep- 
tionable proceedings  should  be  removed  from  the  records  or  tiles 
of  the  cause.*  Nor  will  garnishee  proceedings  lie  against  an  in- 
liabitant  of  a  State,  where  instituted  to  reach  means  in  his  hands, 
which  he  holds  as  assignee  of  an  insolvent  debtor  of  another 
State;  the  effect  would  be  to  defeat  the  assignment  pro  tanto  if 
allowed,  and  to  give  the  plaintiff  an  undue  priority  in  the  assets.'' 
•  In  a  proceeding  in  rem,  by  foreign  attachment  and  garnishee, 
jurisdiction  in  rem  attaches  by  service  of  thfe  garnishee  process. 
The  supposed  indebtedness  of  the  garnishee,  or  interest  of  the 
del)tor  in  his  hands,  is  thereby  placed  in  the  custody  of  the  law, 
and  jurisdiction  over  the  subject  matter  thereof  is  vested  in  the 

'  Miller  v.  Davison,  31  Iowa,  435;         '  Crouch  v.  Crouch,  30  Wis.  C67. 
Bates  V.  The  C.  &  N.  W.  R.  R.  Co.,  19         »  Ibid. 

Iowa,  260.    See,  also,  as  bearing  on         *  Ibid.;  Hurd  %.  Jarvis,  1  Pinney, 

this  princii)le.  Grant  t.  King,  31  Mo.  475. 
812 ;  McComber  «.  Jaffray,  4  Gray,  82.         *  Wales  e.  Alden,  22  Pick.  245. 


PROCESS    OF    GAENISHMENT.  131 

court,  to  inquire  into  the  liability  or  indebtedness  of  the  garnishee; 
and  the  liability  of  the  real  defendant  to  the  plaintiff  "on  the 
alleged  cause  of  action  may  be  adjudicated  before  judgment  as  to 
the  garnishee,  and  if  judgment  goes  in  favor  of  the  plaintiff,  the 
amount  realized  or  reached  by  the  garnishee  process  is  applied 
thereon,  or  so  much  of  it  as  will  satisfy  the  principal  liability 
and  costs  ;i  but  if  nothing  be  found  against  the  garnishee,  or  in 
his  hands,  jurisdiction  is  at  an  end,  and  the  whole  proceeding 
terminates. 

» Keep  V.  Sanderson,  13  Wis.  353 


132  INTER-STATE   INSOLVENT   DISCHAEQE. 


CHAPTEK  XIII. 

INTER-STATE  INSOLVENT  DISCHARGE  BY  STATE  COURT. 

I.    The  Court  must  have  Jurisdiction  op  the  Cbeditor's  Person. 
II.    Distribution  of  Insolvent  Assets, 

I.    The  Court  must  have   Jurisdiction    of   the    Creditor's 

Person. 

In  proceedings  of  a  debtor  to  obtain  a  discharge  under  a  State 
insolvent  law,  it  is  the  citize^iship  of  the  parties  that  governs 
and  enables  the  court  to  have  jurisdiction,  and  not  the  place 
where  the  contract  is  payable,  or  where  it  is  to  be  performed; 
therefore,  a  discharge  in  such  a  proceeding  has  no  force  against  a 
creditor  who  is  a  citizen  and  resident  of  a  different  State  at  the 
time  the  proceeding  is  had,  and  who  has  not  appeared  therein,  or 
in  some  manner  made  himself  a  party  thereto,  or  consented  to 
the  discharge.  Such  is  now  the  settled  doctrine  of  the  courts.  ^ 
Jurisdiction  of  the  person  of  the  creditor  is  necessary,  by  actual 

'  Hawley  v.  Hunt,  27  Iowa,  303,  307,  ency  tribunal,  as  held  in  Scribner  v. 

308;  Baldwin  v.  Hale,  1  Wall.  223;  Fisher,  2  Graj',  43,  is  to  be  disregard- 

Ogden  V.  Saunders,  12  Wheat.  213 ;  ed,  as  that  case  was  overruled  in  this 

Boyle  V.  Zacharie,  6  Pet.  348 ;  Suydam  respect  by  the  United  States  Supreme 

V.  Broadnax,  14  Pet.  75;  Cook  v.  Mof-  Court  in  Baldwin  «.  Hale,  supra;  and 

fat,  5  How.  295,  310 ;  Donnelly  v.  Cor-  so,  again,  by  the  Supreme  Court  of 

bett,  7  N.  Y.  500 ;  Felch  v.  Bugbee,48  Massachusetts,  in  Kelley  v.  Drury,  su- 

Maine,    9;   Poe  v.   Duck,  5  Md.  1;  pra;  Collins  «.  Rodolph,  3  G.  Greene, 

Beers  v.  Rhea,  5  Tex.  349;  Anderson  299;  McKim  t.  Willis,  1  Allen,  512; 

V.  Wheeler,  25  Conn.  C03;   Pugh  v.  Gilman  v.  Lockwood,  4  Wall.  409; 

Bussel,  2  Blackf.  394;  Crowe.  Coons,  Riley  v.  Lamar,  2  Cr.  344;  McMillan 

27  Mo.  512;  Beer  t).  Hooper.  32  Miss.  «.  McNeill.    4  Wheat.    209;    Wood- 

246;  Woodhull  v.  Wagner,  Bald.  C.  C.  bridge  v.  Allen,  12  Met.  470;  Proctor 

296,  300;  Springer  v.  Foster,  2  Story  i).  Moore,  1  Mass.  198;  Smith  e.  Smith, 

C.  C.  382;  Kelley  v.  Drury,  9  Allen,  2  John.  235;   Watson  v.  Bourne,  10 

27.    Anything  to  the  contrary  hereof,  Mass.  337;  Soule  v.  Chase,  39  N.  Y. 

going  to  make  an  exception  as  to  342.    See,  also,  note  to  Baldwin  t>. 

cases  where  the  contract  is  perform-  Hale,  3  Am.  Law  Reg.  (n.  s.)  463 ; 

able  in  the  same  State  of  the  insolv-  Bishop  on  Insolvent  Debtors,  64. 


THE    COURT    MUST    HAVE    JURISDICTIOl^.  133 

notice  or  service,  as  in  personal  actions,  and  can  no  more  be  given 
in  one  than  in  tlie  other  of  those  proceedings,  where  the  party  to 
be  affected  resides  out  of,  and  is  not  found  within  the  State,  and 
does  not  in  some  manner  submit  himself  to  the  jurisdiction. ^ 
In  Ogden  v.  Saunders,,  the  Supreme  Court  of  the  United  States, 
Johnson,  Justice,  say:  "That,  as  between  citizens  of  the  same 
State,  a  discharge  of  a  bankrupt  by  the  laws  of  that  State  is 
valid,  as  it  affects  posterior  contracts;  as  against  citizens  of 
other  States  it  is  invalid  as  to  all  contractsP'^  And  in  Cook  v. 
Moffat^^  the  same  court  say:  "A  certificate  of  discharge  under 
an  insolvent  law  will  not  bar  an  action  brought  by  a  citizen  of 
another  State  on  a  contract  made  with  him;"  and  that  State  in- 
solvent laws  "  can  have  no  effect  on  contracts  made  before  their 
enactment,  or  heyond  their  jurisdiction."  l^ov  can  such  laws 
and  proceedings  act  upon  the  dehts  in  the  nature  of  proceeding 
in  rem,  by  reason  of  the  debtor  being  within  the  jurisdiction ; 
for  it  is  a  settled  principle  of  the  law,  that  a  debt  attends  the 
person  of  the  creditor,  and  not  of  the  debtor,  no  matter  where 
the  debtor  may  be,  or  in  what  State  the  debt  originated,  or  is 
made  payable.*  So  that  if  the  debt  attends  the  creditor,  and  the 
creditor  is  a  non-resident  of  the  State,  it  cannot  at  the  same  time 
be  within  the  jurisdiction  of  the  court  where  the  proceedings 
are  had,  so  as  to  be  acted  on  in  rem.  The  same  doctrine  is  as- 
serted in  Fetch  v.  Bugbee,  infra.  It  is  the  citizenship,  and  not 
the  locality  or  jurisdiction,  which  is  designated  as  the  place  of 
payment,  that  the  legal  rights  of  the  parties  rest  on,  as  to  a  dis- 
charge under  the  insolvent  laws.  In  the  case  here  cited,  the  notes 
were  made  in  Boston,  Massachusetts,  payable  to  the  maker's  own 
order,  and  were  assigned  by  him  to  citizens  of  Massachusetts, 
who,  at  Boston,  negotiated  and  sold  them  to  the  plaintiff  before 
maturity,  and  before  the  proceedings  in  insolvency  were  insti- 
tuted. One  of  the  notes  was  payable  in  Boston.  The  other  did 
not  name  any  place  of  payment.     The  court  held,  or  reasserted 

'  Hawley  v.  Hunt,  27  Iowa,  303, 307,  trine  of  the  case  of  Ogden  «.  Saun- 

308;   D'Arcy  B.  Ketchum,   11   How.  ders  is  no  longer  open  to  controversy. 

165,  and  cases  cited  above.  Boyle    v.   Zacharie,  6  Pet.  348,  and 

■2 12  Wheat.  233.      And  although  Same  v.  Same,  6  Pet.  635. 

there  was  a  divided  court  in  this  case,  ^  5  How.  309. 

yet  by  subsequent  concurrence  of  all  *  Hawley  v.  Hunt,  37  Iowa,  303, 307. 
the  judges  in  a  parallel  case,  the  doc-w 


184  INTER-STATE   INSOLVENT   DISCHARGE. 

the  principle  of  law,  that  as  between  its  own  citizens,  a  State 
had  power  to  grant  a  full  discharge;*  and  that  a  subsequent 
change  of  domicile  or  citizenship  into  another  State,  made  after 
entering  into  the  contract  or  creating  the  liability,  did  not  in 
law  affect  the  validity  of  a  discharge  obtained  before  such  change 
or  removal.'  But  that  where  the  liability  is  a  negotiable  one, 
payable  generally,  and  is  between  citizens  of  the  State  granting 
the  discharge,  and  endorsed  to  a  citizen  of  another  State  before 
maturity,  and  before  the  inception  of  proceedings  in  insolvency, 
the  endorsement  is  a  new  contract,  and  the  discharge  will  not  bar 
an  action  thereon. ^  And  such  is  the  rule  of  law  in  both  the  State 
and  United  States  courts.*  And  so  of  a  note  made  payable  in 
one  State  wherein  it  is  executed  and  the  maker  resides,  but  if  it  is 
made  payable  to  a  citizen  or  resident  of  another  State,  after  a  full 
review  of  the  rulings  on  the  subject  it  can  be  received,  as  well 
settled,  that  an  insolvent  discharge,  nnder  the  law  of  the  State 
wherein  the  debtor  resides  and  the  note  is  payable,  will  not  bar 
an  action  on  the  note  in  favor  of  such  non-resident  payee,  who 
has  not  subjected  himself  to  the  jurisdiction  of  the  court  grant- 
ing the  discharge  in  insolvency."* 

In  the  case  of  Baldwin  v.  Ilale^^  the  action  was  on  a  promis- 
sory note,  made  at  Boston,  in  the  State  of  Massachusetts,  and 
endorsed  by  the  maker,  in  whose  own  favor  it  was  made,  to  the 
plaintiff  in  the  action,  who  was  then,  and  until  the  time  of  suit 
upon  the  note,  a  citizen  and  resident  of  the  State  of  Vermont. 
The  note  was  payable  at  Boston  six  months  after  its  date.  Soon 
after  making  and  thus  endorsing  the  note  to  Hale,  Baldwin  ap- 
plied for  and  obtained  the  benefit  of  the  insolvent  law  of  Massa- 
chusetts, in  a  court  of  that  State,  and  received  his  discharge  in 

>  Felch  B.  Bugbee,  48  Maine,  9, 11 ;  *■  Cook  c.  Moffat,  5  How.  309. 

Stone  V.  Tibbetts,  26  Maine,  110;  Og-  »  Felch  r.  Bugbee,  48  Maine,  9,  13. 

den  r.  Saunders,  12  Wheat.  213.  15;  Cook  r.  Moffat,  5  How.  309;  Og- 

■•»  Felch  V.  Bugbee,  48  Maine,  9, 11 ;  den  r.  Saunders,  12  Wheat.  213;  Don- 
Stevens  ».  Norris.  30  N.  H.466;  Brig,  nelly  n.  Corbett,  7  N.  Y.  500;  Ander- 
ham  v.  Henderson,  1  Cush.  430.  son  ».  Wheeler,  25  Conn.  603 ;  Wood- 

3  Felch  n.  Bugbee,  48  Maine.  9,  12;  hull  t.  Davis,  Bald.  C.  C.  300;  Towne 

Banchor    v.    Fisk,    33    Maine,  316;  tJ.  Smith,  1  Wood  &  M.  115,  137. 

Houghton  t.  Maynard,  5  Gray,  552;  « 1  Wall.  223. 
Savoye  v.  Marsh,  10  Met.  595 ;  Ander- 
son «.  "Wheeler,  25  Conn.  603. 


THE    COURT    MUST    HAVE   JURISDICTION.  135 

terms  purporting  to  be  from  all  contracts  payable  or  to  be 
performed  in  that  State.  Hale  neither  became  a  party  to  the 
proceedings  nor  made  any  appearance  thereto,  he  being  at  the 
time  in  Vermont;  neither  did  he  prove  up  his  claim  upon  the 
note.  Hale  then  sued  Baldwin  on  the  note  in  the  Circuit 
Court  of  the  United  States  for  the  District  of  Massachusetts, 
and  the  defense  principally  relied  on  was  that  the  note  was 
payable  in  Massachusetts,  and  therefore  came  within  the  terms 
of  the  discharge,  but  the  court  held  that  the  discharge  did  not 
extend  to  a  debt  held,  as  that  was,  by  one  who,  at  the  time  ot 
the  proceedings,  was  resident  in  another  State,  and  was  in  no 
manner  a  party  thereto,  and  that  such  was  the  law  irrespective 
of  the  fact  that  payment  was  to  be  made  within  the  State  of 
Massachusetts,  where  the  insolvent  proceedings  were  had.  The 
case  having  gone  to  the  Supreme  Court  of  the  United  States 
upon  a  writ  of  error,  that  court  affirmed  the  decision  of  tlie 
circuit  court.  1  In  delivering  the  opinion,  Clifford,  J.,  said: 
"  Insolvent  laws  of  one  State  cannot  discharge  the  contracts 
of  citizens  of  other  States,  because  they  have  no  extra-territorial 
operation,  and  consequently  the  tribunal  sitting  under  them, 
unless  in  cases  where  a  citizen  of  such  other  State  voluntarily 
becomes  a  party  to  the  proceedings,  has  no  jurisdiction  in  the 
case.  "2 

In  Louisiana  there  must  be  personal  notice,  to  the  creditor,  of 
the  proceeding  in  insolvency,  or  else  their  claims  will  not  be 
barred  by  the  supposed  discharge.  If  the  creditors  are  resident, 
actual  notice  must  be  served  on  them.  If  they  are  non-resident, 
then  notice  must  be  mailed  to  them  by  a  notary.  Also,  public 
notice  thereof  by  publication.  Without  these  the  debtor  is  not 
discharged  by  proceedings  under  the  laws  of  insolvency. ^ 

But,  query?  As  to  the  jurisdiction  of  the  State  to  effect  a 
discharge  as  against  a  non-resident  creditor,  who  does  not  make 
himself  a  party  to  the  proceedings,  or  is  not  made  so  by  actual 
personal  service,  effected  within  the  State,  even  if  these  prelim- 
inary requirements  of  the  Louisiana  law  be  complied  with,  as  to 

>  Baldwin  v.  Hale,  1  Wall.  223;  to  300;  Felcli  v.  Bugbee,  48  Maine,  9; 

same  effect  see  Anderson  v.  Wheeler,  Towije  v.  Smith,  1  Wood.  &  M.  115. 

25  Conn.  605 ;  Donnelly  v.  Corbett,  7  ^  i  ^y^II.  234. 

JSr.  Y.  500 ;  Poe  v.  Duck,  5  Md.  1 ;  «  Breedlove  v.  Nicolet,  7  Pet.  413 
Woodhull    V.  Wagner,   Bald.   C.    C. 


136  INTER-STATE    INs^OLVENT    DlSClIAltOP:. 

publication  and  tlie  mailing  of  notice,  for  we  liavc  scen^  that  it 
is  the  citizensliip  and  personal  jurisdiction  of  the  parties  to  bo 
affected  that  gives  the  court  power  to  discharge,  and  that  such 
proceeding  has  no  validity  as  against  a  creditor,  or  his  de]>t,  who 
is  resident  or  citizen,  at  the  time,  of  another  State,  and  is  not 
an  actual  party  to  the  proceedings,  by  his  own  consent,  or  by 
personal  service  made  within  the  State.  The  laws  of  the  forum 
can  have  no  force  or  effect  beyond  the  confines  of  the  State. 

Suretyship  and  Indemnity.  Contracts  of  suretyship  and  of 
indemnity  against  the  same,  entered  into  in  one  State  to  release 
the  property  of  a  non-resident  held  under  judicial  proceedings 
in  the  State  where  such  contracts  are  made,  are  governed  by  the 
law  of  the  State  where  made,  and  performance  is  there  contem- 
plated, if  no  other  place  of  performance  be  mentioned,  although 
tlie  owner  of  the  property  resides  in  a  different  State.  ^ 

Such  being  the  rule  of  the  contract,  a  discharge  of  such  owner 
under  insolvent  proceedings  in  the  State  where  he  so  resides,  will 
not  relieve  him  from  liability  on  his  contract  of  indemnity  in  the 
State  where  the  same  was  made,  as  against  those  same  sureties 
there  resident,  in  whose  behalf  the  indemnity  contract  was 
made.  3 

II.     Distribution  of  Insolvent  Assets. 

National  Priority.  In  the  distribution  of  proceeds  of  sales,  in 
cases  of  insolvent  debtors,  the  United  States  have  priority  of  all 
other  creditors,  and  are  entitled,  except  as  against  prior  and  valid 
liens,  to  be  first  paid.* 

The  fact  that  this  priority  is  conferred  by  statute  renders  it 
unnecessary  to  enquire  how  far  such  preference  exists  upon  gen- 
eral principles.  It  was  first  conferred  by  act  of  Congress  of 
March  3,  1797,  and  by  the  collection  laws  of  the  United  States, 
and  is  construed  to  apply  only  to  cases  of  legal  insolvency,  as 
assignments  by  insolvent  debtors,  or  to  persons  declared  bank- 
rupts.' This  priority  is,  also,  applicable  only  to  government 
debts  accruing  after  the  passage  of  the  act  of  Congress. «     It  is 

'  Ante,  note  1  to  this  chapter.  *  Prince  c.  Bartlett,  8  %v.  431,  433, 

«  Boyle  e.  Zacharie,  6  Pet.  635.  434;  U.  S.  e.  Howiand,  4  Wlieat.  108; 

*  Ibid.  Thclusson  v.  Smith,  2  Wheat.  396. 

«  U.  S.  V.  Fisher.  2  Cr.  358;  Harri-  «  U.  S.  «.  Biyau,  9  Cr.  374. 
son  V.  Sterry,  5  Cr.  289. 


DISTRIBUTION^    OF    INSOLVENT    ASSETS.  137 

not  such  an  insolvency,  however,  as  is  indicated  by  a  mere  ina- 
bility to  pay  debts  that  will  give  rise  to  such  a  preference;  but 
there  must  be  an  assignment,  or  proceeding  in  bankruptcy.  But 
if  such  a  case  arises  as  gives  vitality  to  the  priority,  then  such 
priority  overrides  all  other  claims  to  payment,  including  judg- 
ment liens  ;^  for  the  judgment  creditor  takes  his  lien  subject  to 
this  very  condition  of  things,  if  occasion  gives  rise  to  them.  In 
the  case  of  Thelusson  v.  Smith,  the  Supreme  Court  of  the  United 
States,  Washington,  J.,  say,  that  such  priority  excludes  "all 
debts  due  to  individuals,  whatever  may  be  their  dignity." ^ 

Limit  of  National  Priority.  But  this  first  satisfaction  must  be 
out  of  the  debtor's  estate;  and,  therefore,  if  the  debtor  sell  and 
convey  all  his  property,  bona  fide,  before  the  right  of  priority  is 
brought  into  action  or  effect,  or  before  that  time  he  makes  a 
mortgage  thereof  to  secure  a  debt,  or  the  property  be  levied  and 
seized  under  a  writ  oi  fieri  facias,  if  personal  property,  so  that 
tlie  property  is  divested  out  of  the  debtor,  then  the  right  of  pri- 
ority in  the  United  States  cannot  arise  as  to  such  property,  by 
reason  of  any  subsequent  act  of  assignment  or  bankruptcy;  for 
the  property  is  no  longer  in  the  debtor.  Judgments  give  liens 
preference  over  other  ordinary  debts,  on  the  lands  of  a  debtor, 
but  the  act  of  Congress  defeats  this  preference  in  favor  of  the 
United  States.-^ 

Subrogation  of  Sureties  Paying  National  Priorities.  A  surety 
of  such  debtor,  who  pays  the  debt  to  the  United  States,  which  is 
thus  entitled  to  priority,  has  a  right  to  be  subrogated  to  the  same 
priority  of  payment  which  previously  inured  to  the  government, 
for  the  reimbursement  to  him  of  the  sum  thus  paid.*  In  the 
case  here  cited,  of  Hunter  v.  The  United  States,  this  principle 
is  asserted  in  the  following  language:  "The  same  right  of  pri- 
ority which  belongs  to  the  government  attaches  to  the  claims  of 
an  individual  who,  as  surety,  has  paid  money  to  the  governnient."5 

National  Debts  Not  Matured.  The  priority  of  the  United 
States,  above  referred  to,  applies  to  liabilities,  although  payable 
after  proceedings  had,  if  contracted  prior  thereto.^ 

1  Thelusson  v.  Smith,  2  Wheat.  396.         *  Hunter  v.  U.  S.,  5  Pet.  173,  182, 

2  2  Wheat.  425.  183. 

»  Thelusson  v.  Smith,  2  Wheat.  396,  '  5  Pet.  182,  183. 

426 ;  1  Stat,  at  Large,  676,  §  65,  Act  of  «  U.  S.  v.  Bank  of  North  Carolina, 

Cong,  of  1799 ;  R  S.  of  U.  S.,  1874,  §  6  Pet.  29. 
3466. 


I 


138  INTER-STATE    INSOLVENT    DISCHARGE. 

Foreign  Assignments.  It  is  the  prevailing  doctrine  of  the 
American  courts  tliat  an  assignment  voluntary,  by  a  debtor,  or 
by  commissioners  or  officers  of  the  law,  of  a  debtor's  personal 
property  under  a  foreign  bankrupt  or  insolvent  law,  will  not  oper- 
ate as  a  legal  transfer  of  that  part  of  the  property  which  is  within 
another  State  or  country,  as  against  a  creditor  of  the  bankrupt 
or  insolvent,  who  resides  where  such  property  is  situated,  and 
who  interposes  or  asserts  his  claim  against  such  property  by  at- 
tachment or  other  proper  legal  proceedings.  The  claims  of  as- 
signees or  commissioners  cannot,  in  such  cases,  prevail  as  against 
creditors  and  property  situated  in  another  State. ^ 

The  Kule  in  Maryland.  Yet  the  ruling  in  Maryland  is  that 
all  the  effects  of  an  insolvent,  wherever  situated,  whether  in  the 
State  or  out  of  the  State,  are,  by  the  assignment,  vested  in  the 
trustee;  and  that,  without  regard  to  what  the  courts  of  other 
States  may  hold  in  regard  to  it;  and,  although  the  courts  of 
Maryland  cannot  reach  it  if  in  another  State,  yet,  if  brought 
within  the  jurisdiction  of  the  Maryland  court,  it  will  be  regarded 
and  treated  as  a  part  of  the  trust  fund,  and  the  trustee  will  be 
entitled  to  it.^ 

That  the  trust  fund  will  be  administered  in  the  Maryland 
courts  according  to  Maryland  law,  and  that  when  the  doctrine  of 
comity  and  such  domestic  law  conflict,  the  positive  lo^al  law  will 
control.' 

The  effect  of  assignments,  made  in  one  State,  of  property  sit- 
uated in  another  State,  for  the  benefit  of  creditors,  has  given  rise 
to  much  and  varied  discussion,  and  the  courts,  it  will  be  seen, 
are  not  at  all  a  unity  upon  the  question.  Where  the  assignment 
contravenes  a  law  or  custom  of  the  State  where  the  property  is 
situated,  it  can  be  safely  stated  that  it  will  give  way  to  the  lex 
rei  sitcB.*  But,  where  the  assignment  under  an  insolvent  law 
does  not  conflict  with  the  law  of  the  State  where  the  property  is 

I  Felch  V.  Bugbee,  48  Maine,  9,  19;  v.  Remsen,  20  John.  229;  Osborn  v. 

Blake  v.  Williaras,  6  Pick.  286;  The  Adams.  18  Pick.  245. 

Watchman,  1  Ware,  232;  Towne  v.  '  Gardner  ti.  Lewis,  7  Gill,  377. 

Smith,  1  Woodb.  &  M.  137;  Whar-  "Ibid. 

ton's  Conf.  of  Laws,  §  392;  Stoiy's  *2  Kent.  *407;  Green  v.  Van  Bus- 

Conf.  of  Laws,§  410  et  seq.;  2  Kent,  kirk,  5  Wall.  307;  Burrill  on  Assign- 

*405 ;  Harrison  v.  Sterry,  5  Cr.  289 ;  Og-  ments,  §  306  et  aeq.;  Bishop  on  Aa- 

den  F.  Saunders,  12  Wheat  213 ;  Pies-  signmeuts,  §  261. 
toro  V.  Abraham,  1  Paige,  236 ;  Holmes 


DISTEIBUTION    OF    INSOLVENT    ASSETS.  139 

situated,  and  the  rights  of  resident  creditors  do  not  intervene, 
the  foreign  assignment  will  be  respected  out  of  considerations  of 
comity.  1  Where  the  rights  of  creditors  resident  in  the 'State 
have  intervened,  as  by  attachment,  they  will  be  entitled  to  prior- 
ity as  against  the  foreign  assignee. ^ 

Eeal  estate  situated  in  another  State  can  only  be  covered  by  a 
foreign  assignment  when  it  conforms  to  the  lex  loci  rei  sitcB.^ 
The  remedies,  and  methods  of  enforcing  them  under  foreign  in- 
solvent assignments,  are  governed  by  the  lex  fori.^ 

>  2  Kent.  *407;  Green  v.  Van  Bus-  «  Osborn  v.  Adams,  18  Pick.  245; 

kirk,  5  "Wall.  307 ;  Burrill  on  Assign-  Dundas  v.  Bowler,  3   McLean,  399 ; 

ments,  §  306  et  seq.;  Bishop  on  As-  Houston  v.  Nowland,  7  Gill  &  J.  480. 

signments,  §  261.  ^  Speed  v.  May,  17  Penn,  St.  95; 

2  See  the  subject  of  foreign  assign-  Jones  v.  Taylor,  30  Yt.  4b. 
ments  discussed  supra. 


140  TEANSITORY    ACTIONS. 


CHAPTER  XIV. 

AOnONS   FOR    TOETS   AND   TEANSITORY   ACTIONS. 

I.    Actions  of  Trespass  vi  et  Armis. 
II.    AcTioKs  OP  Trespass  On  the  Case  for  Tobts  and  Tbakbitoby 

Actions. 
III.    Abatement  and  Bar  op  Actions. 

I.    Actions  of  Trespass  vi  et  Armis. 

Trespass  Quare  Clausum  Fregit  is  Local.  Prominent  among 
actions  of  trespass  vi  et  armis,  in  England,  is  the  action  of  tres- 
pass quare  clausum  fregit,  or  action  of  trespass  for  breaking 
and  entering  plaintiff's  close.  This  is  a  common  law  action,  and 
being  for  injury  to  the  realty  and  to  the  possession  of  the  owner 
thereof,  it  is  a  local  action,  and  does  not  lie  outside  of  the  State 
or  sovereignty  wherein  the  premises  are  situated  and  the  trespass 
occurs.  1  The  injury  being  thus  local,  inter-State  actions  will 
not  lie  therefor.  That  is  to  say,  an  action  will  not  lie  for  such 
cause  in  a  different  State,  or  different  district  of  the  United 
States,  than  the  one  wherein  the  injury  is  committed.  That,  if 
the  wrong-doer  retires  to  a  different  State  before  suit  against  him, 
he  cannot  be  sued  therein  for  the  injury.  Where  the  wrongful 
act  is  committed  in  one  State,  by  which  real  property  situated  in 
another  State  is  injured,  the  question  arises  whether  there  is  not  a 
cause  of  action  in  either  State.  It  has  been  held  in  one  case  that 
suit  could  be  brought  in  either.' 

'  McKenna  v.  Fiske,  1  How.  241,  Wall.  275.    See,  also,  Worster  v.  Win- 

248,  249;   Livingston  v.  Jefferson,  1  nipiseogee  Lake  Co.,  25  N.  H.  525, 

Brock.  203 ;  Gorman  v.  Marsteller,  2  where  most  of  the  authorities  are  col- 

Cr.  C.  C.  311 ;  Smith  b.BuU,  17  Wend,  lected,  and  the  court  holds  that  the 

323 ;  Watts  v.  Kinney,  23  Wend.  484 ;  action  is  local  and  can  be  brought 

Champion  v.  Doughty,  18  N.  J.  Law,  only  where  the  land  is  situated.    See 

3 ;  Doulson  t.  Matthews,  4  T.  R.  503 ;  further,  Barden  v.  Crocker,  10  Pick. 

Ham  V.  Rogers,  6  Blackf  559.  383,  and  Angell  on  Water  Courses,  § 

«  Rimdle  v.  Del.  &  Rar.  Canal,  1  420,  7th  ed. 


I 


FOE    TORTS EX    CONTRACTU.  141 

II.     Actions  of  Trespass  on  the  Case  foe  Torts  and 
Transitory  Actions. 

Transitory  Actions  will  Lie  in  Other  States.  But  actions  of 
trespass  vi  et  armis  for  personal  injuries,  and  trespass  de  ho7iis 
asjyortatis,  and  other  personal  torts,  are,  in  this  respect,  very 
different.  In  these  cases  the  actions  are  personal  and  transitory: 
The  right  of  action  follows  the  person  of  the  wrong-doer,  and  he 
may  be  sued  therefor  wherever  he  is  found  and  can  be  served 
with  process.!  These  are  not  only  personal,  but  are  torts  at  com- 
mon law.  2  The  courts  of  England  have  always,  in  times  of 
peace,  entertained  actions  of  trespass  of  a  personal  nature,  for 
injuries  inflicted  in  other  countries,  not  only  in  behalf  of  English 
subjects,  but  between  foreigners,  where  service  could  be  had,  and 
this,  too,  not  only  for  causes  of  action  arising  within  the  realm, 
but  out  of  the  realm,  and  within  or  without  the  king's  foreign 
dominions ;  so  that,  if  a  person  commits  a  tort  upon  the  person, 
or  personal  property,  of  another,  in  a  foreign  kingdom,  an  action 
may  be  maintained  in  England  therefor,  if  the  wrong-doer  be 
found  there  and  service  be  had  upon  him,  and  the  formal  venue 
may  be  laid  in  England. ^  This  being,  then,  the  well-settled  law 
in  England  as  between  subjects  of  States  entirely  foreign  to  each 
other,  the  rule  is  necessarily  no  less  liberal  between  States,  though 
independent  of  each  other,  yet  so  interwoven  in  nationality  and 
domestic  relationship  as  are  the  several  United  States. 

Actions  Ex  contractu.  As  to  such  being  the  law  in  cases  ex 
contractu,  there  has  never  been  any  doubt.  In  the  case  of 
McKenna  v.  Fiske,^  the  Supreme  Court  of  the  United  States, 
Wayne,  J.,  delivering  the  opinion,  it  is  said:  "If  A.  becomes 
indebted  to  B.,  or  commits  a  tort  upon  his  person,  or  personal 
property,  in  Paris,  an  action  in  either  case  may  be  maintained 
against  A.  in  England,  if  he  is  found."     And  so  Lord  Mans- 

1  Gorman  v.  Marsteller,  2  Cr.  C.  C.  Rafael  v.  Verelst,  2  Wm.  Black.  1055; 
311 ;  Livingston  v.  Jefferson,  1  Brock.  Neale  v.  De  Garay,  7  T.  R.  243 ;  The 
203 ;  Northern  Ind.  R.  R.  Co.  v.  Mich.  King  v.  Johnson,  6  East.  583,  598 ; 
Cent.  R.  R.  Co.,  5  McL.  444;  S.  C,  15  Mostyn  v.  Fabrigas,  Cowp.  161 ;  Scott 
How.  233.  V.  Seymour,  1   Hurl.  &  C.  219.    See 

2  McKenna  «.  Fiske,  1  How.  241,  infra,  of  this  chapter,  where  the  sub- 
248,  249 ;    Mitchell  v.  Harmony,   13  ject  is  treated  more  at  large. 

How.  115.  M  How.  241. 

» McKenna  v.  Fiske,  1  How.  241; 


142  TRANSITORY   ACTIONS. 

FIELD,  in  Mostyn  v.  Fahrigas,  ^  says  that  there  is  not  a  color  of 
doubt  but  that  any  action  which  is  transitory  may  be  laid  in  any 
county  in  England,  though  the  matter  arises  beyond  the  seas.  In 
such  actions  the  liability  follows  the  person  of  the  aggressor, 
and  may  be  enforced  in  any  State  where  he  is  found,  and  where 
the  comity  of  States,  as  to  the  right  of  action  by  non-residents, 
prevails.' 

Actions  for  Common  Law  Personal  Torts,  Committed  in  One 
State,  Lie  in  Others.  We  take  it,  then,  to  be  a  well-settled 
principle  of  the  law  that  actions  at  common  law,  for  personal 
torts,  that  is,  for  injuries  to  the  person,  the  personal  property,  or 
reputation  of  another,  deemed  such  at  common  law,  and  not  orig- 
inated by  statute,  may  be  maintained  against  the  aggressor,  in 
the  courts  of  the  American  States,  of  general  jurisdiction,  where 
ever,  and  in  whatever  of  these  States,  the  defendant  may  be 
found,  Avithout  regard  to  the  place  where  the  cause  of  action 
originates; 3  and  also  in  the  circuit  courts  of  the  United  States, 
when  the  citizenship  of  the  parties  and  the  amount  involved  are 
such  as  to  confer  jurisdiction  on  these  courts.* 

The  case  of  Curtis  v.  Bradford^  garnishee,  was  a  proceeding 
in  rem,  by  garnishee  process,  in  a  State  court  of  Wisconsin.  The 
claim  was  of  damages  for  an  injury  sustained  by  plaintiff,  a  pas- 
senger injured  in  Michigan,  while  getting  on  to  the  Milwaukee  & 
Detroit  railroad  car,  and  Bradford,  the  person  garnished,  was 
local  ticket-agent  of  that  company  in  Wisconsin.  The  railroad 
company  was  a  corporation  of  the  State  of  Michigan,  and  had 
no  local  agent  in  Wisconsin,  as  alleged  by  plaintiff,  on  whom  it 
was  competent  to  make  service,  so  as  to  obtain  actual  jurisdiction 

'  Cowp.  161.  Mitchell  v.  Harmony,  13  How.  115, 

«  Gardner  v.  Thomas,  14  John.  135;  137;  Gardner®.  Thomas,  14  John.  135; 

Johnson  «.  Dalton,  1  Cow.  543.    But  Phila.,  Wil.  &  Bait  R.  R.  Co.  v.  Quig- 

where  the  tort  is  committed  on  board  ley,  21  How.  202.    The  case  of  Mitch- 

a  foreign  vessel,  the  courts  of  another  ell  v.  Harmony  was  for  a  tort  commit- 

country,  into  which  the  parties  come,  ted  to  personal  property  in  the  Repub- 

and  where  suit  is  brought,  will  de-  He  of  Mexico,  and  jurisdiction  was 

•cline  the  jurisdiction  and  remit  the  maintained  in  the  American  courts, 

parties  to  the   courts  of  their  own  Curtis   v.    Bradford.    33    Wis.    190; 

country  for  redress.  Gardner  t>.  Thom-  Cooley  on  Torts,  470. 

as,  supra.    See,  as  to  this  point,  also,  *  Phila.,  Wil.  &  Bait.  R.  R.  Co.  v. 

Wilson  «.  McKeuzie,  7  Hill,  219.  Quigley.   21   How.  202;   Mitchell  o. 

3  McKenna  v.  Fiske,  1  How.  241,  Harmony,  13  How.  115, 137. 
248,  249;  Glen  v.  Hodges,  9  John.  67; 


ACTIONS    OF    TRESPASS    FOR    TORTS.  14(5 

of  the  railroad  corporation;  but  Bradford,  the  garnishee,  had 
money  in  his  possession  belonging  to  the  company,  as  admitted 
by  his  answer.  AVhat  the  character  of  the  injury  was  is  not 
shown.  Nor  is  it  shown  whether  the  action  was  statutory,  or  as 
at  common  law.  No  defense  was  made  for  the  railroad  com- 
pany, and  judgment  was  sustained  against  the  garnishee  for  the 
amount  found  in  his  hands.  Taken  altogether,  the  case  shows 
no  more  than  an  ordinary  common  law  tort,  so  that  it  was  well 
held  that  the  right  of  action  was  a  transitory  one,  on  which  an 
action  lies  in  the  courts  of  one  State  for  a  personal  injury  sus- 
tained in  another  State. ^  But  it  is  not  to  be  confounded  with 
statutory  actions  for  personal  injuries,  or  statutory  actions  for 
injuries  causing  the  death  of  a  person;  for  nothing  of  either 
character  is  indicated  by  the  case.  From  the  character  of  the 
cases  cited  by  the  court,  to  the  point  that  the  action  was  transitory, 
it  would  seem  that  the  injury  complained  of  was  one  proceeding 
from  an  ordinary  common  law  tort,  or  act  of  negligence. 

Action  of  Trespass  on  the  Case  Lies  in  any  State.  The  common 
law  action  on  the  case,  or  such  action  in  form  as  by  State  legisla- 
tion is  substantially  substituted  therefor,  as  a  remedy  for  injury 
to  person  or  reputation,  or  other  personal  injuries  of  an  indirect 
or  consequential  effect,  will  lie  in  the  courts  of  the  several  States 
at  the  suit  of  citizens  or  residents  of  other  States,  whether  the 
injury  sued  for  be  committed  in  one  State  or  the  other,  or  in  an 
entirely  foreign  state  or  kingdom,  if  the  defendant  be  found  and 
served  with  process  in  the  State  where  sued.^ 

Transitory  Actions  in  United  States  Circuit  Court.  And  so,  too, 
in  the  United  States  Circuit  Court  for  any  district,  if  the  citizen- 
ship of  the  parties  and  sum  or  value  in  controversy  be  such  as 
in  these  respects  to  confer  jurisdiction. ^  Thus  it  is  settled  that 
the  common  law  action  on  the  case,  for  a  libel,  lies  in  the  United 
States  Circuit  Court,  at  the  suit  of  a  citizen  of  a  State  against  a 
private  corporation  of  another  State  and  district  wherein  the 
court  is  held.* 

1  Curtis  v.  Bradford,  33  Wis.  190,  Cowp.  161 ;  Scott  v.  Sej-mour,  1  H.  & 

2  McKenna  v.  Fiske,  1   How.  241,  C.  219 ;  The  King  v.  Johnson,  6  East. 
248,  249 ;    Mitchell  v.  Harmony,  13  583 ;  Neale  c.  De  Garay,  7  T.  R.  248. 
How.  115;  Glen  v.  Hodges,  9  John.  » Phila.,  Wil.  &  Bait.  R.  R.  Co.  v. 
67 ;  Gardner  v.  Thomas,  14  John.  135 ;  Quigley,  21  How.  202. 

Phila.,  Wil.  &  Bait.  R.  R.  Co.  v.  Quig-  *  Phila.,  Wil.  &  Bait.  R.  R.  Co.  v. 
ley,  21  How.  202 ;  Mostyn  v.  Fabrigas,      Quigley,  21  How.  202. 


144  TRANSITORY   ACTIONS. 

Action  of  Slander.  An  action  of  slander  lies  in  the  State 
wherein  the  words  are  spoken,  charging  a  person  with  larceny 
coniniitted  in  anotlier  State,  for  although  the  alleged  crime  be 
not  punishable  in  the  State  where  the  words  are  spoken,  and  is 
only  cognizable  in  the  State  where  committed,  yet  a  party  thus 
charged  is  liable  to  be  demanded  by  the  authorities  of  such  other 
State,  and  so  be  delivered  over  to  be  tried  therein:  Moreover,  it 
is  not  alone  the  liability  to  be  subjected  to  punishment  that  is  of 
the  essence  of  the  right  of  action,  but  the  injury  to  character 
and  necessity  of  vindicating  the  same;  and  notwithstanding  the 
public  prosecution  may  be  barred  by  the  statute  of  limitations.  ^ 

Action  for  Malicious  Prosecution.  So  an  action  for  malicious 
prosecution  lies  in  a  court  of  one  of  the  United  States  for  op- 
pressive legal  proceedings  and  arrest  instituted  and  enforced 
against  one  in  a  court  of  Canada;  and  the  right  of  recovery  is 
neither  modified  nor  barred  by  any  statute  of  Canada  tending  to 
limit  the  same.* 

It  is  like  an  action  at  common  law  for  personal  injury  incurred 
in  one  State,  which  will  lie  in  the  courts  of  another  State,  at  the 
suit  of  the  injured  person. ^ 

Personal  Common  Law  Injuries  Suable  wherever  the  Wrong- 
doer is  Found.  It  follows  from  the  foregoing  conclusions  and 
authorities  that  in  all  such  purely  jyersonal  actions  of  a  transi- 
tory nature  for  torts  at  common  laio,  a  citizen  of  a  State  may  sue 
a  citizen  of  another  State,  in  the  courts  of  such  other  State,  or 
of  any  State  wherein  he  may  reside,  or  may  be  found  and  served 
with  process,  and  without  regard  to  the  place  or  State  in  which 
the  injury  may  have  been  perpetrated. 

So,  also,  in  the  circuit.court  of  the  United  States  for  any  dis- 
trict, if  the  defendant  be  an  inhabitant  of  the  district,  and  the 
plaintiff  be  a  citizen  of  a  different  State  than  the  one  in  which 

'  Van  Ankin  «.  Westfall,  14  John,  act  is  not  of  itself  a  crime  in  the 

233;   Owen  v.  McKean,  14  111.  459;  place  where  tlie  slander  is  uttered, 

Teagle    v.    Deboy,    4    Blackf.    134;  but  is  a  crime  in  the  State  where  the 

Townsend  on  Slander  and  Libel,  §§  act  charged  is  said  to  have  been  com- 

110,  268.    The  same  rule  governs  as  mitted,  is  governed  by  the  law  of  the 

to  a  libel. — lb.    In  the  very  late  case  latter  State,  and  is  therefore  slander- 

of  Dufresne  v.  Weise  (1879),  1  Wis.  ous perse. 

Leg.  News,  209,  it  was  held  that  slan-  •'  Brown  v.  Mclntire,  43  Barb.  344. 

der,   accusing  another  with  having  '  Ackerson  t).  Erie    R.   R.  Co.,  2 

done  an  act  in  another  State,  which  Vroom,  309. 


ABATEMENT,    AISTD    BAR    OF    ACTIOJVTS.  145 

the  suit  is  brought,  and  the  sum  or  value  involved  in  controversy- 
be  over  five  hundred  dollars,  exclusive  of  costs.  The  right  of 
action  in  these  cases  rests  upon  general  principles,  alike  binding 
everywhere,  and  may  therefore  be  everywhere  enforced,  and  in 
this  respect  is  unlike  a  right  of  action  created  by  local  statute, 
as  matter  of  local  policy,  and  which  is  enforceable  only  w^here 
the  right  is  given  and  the  statute  exists.  The  latter  is  local,  not 
as  savoring  of  the  realty,  liowever,  but  as  existing  only  by  the 
local  law  or  statute,  which  can  have  no  extra-territorial  force. 

Actions  which  are  Given  by  Statute  are  Local.  Where  certain 
acts  are  made  wrongs,  by  statute,  which  were  not  such  thereto- 
fore, or  additional  remedies  are  provided  by  statute  to  those 
which  existed  by  the  common  law,  in  either  case  advantage  can 
be  taken  of  the  same  only  within  the  territory  or  locality  wherein 
the  law  has  force.  These  are  new  rights,  so  to  speak,  and  depend 
for  their  enforcement  always  upon  the  statutes  by  which  they 
are  created.  And  such  statutes  will  be  enforced  only  by  the 
courts  of  the  State  wherein  they  are  enacted.^ 

III.     Abatement,  and  Bak  of  Actions. 

Other  Action  Pending  in  Different  Jurisdiction.  It  is  no  cause 
for  the  abatement  of  an  action  or  suit,  in  a  State  court,  that  the 
plaintiff  has  pending  against  the  same  defendant  another  action 
or  suit,  in  a  court  of  another  State,  for  the  same  cause  of 
action.  8 

*  Woodward  v.  Michigan,  etc.,  R  R.  Ind.  299 ;  Lyman  v.  Brown,  2  Curtis, 

Co.,  10  Ohio  St.  121 ;  Richardson  v.  N.  559.    In  this  case,  Curtis,  J.,  says : 

Y.  Central  R.  R.  Co.,  98  Mass.  85 ;  "  It  seems  to  me  that  the  grounds 

Whitford  v.  Panama  R.  R.  Co.,  23  N.  upon  which  the  plea  of  a  prior  suit 

Y.  465.     See  next  chapter,  infra,  §  pending  has  been  held  to  be  sufficient 

III.  to  abate  the  second  suit,  is  not  appli- 

^  Hogg  V.  Charlton,  25  Penn.  St.  cable  where  the  second  suit  is  pend- 

200;  Williams  «.  Ayrault,  31   Barb.  ing  in  a  foreign  country,  or  even  in 

364;  De  Armond  v.  Bohn,  12  Ind.  another  State  of  this  Union.     The 

607 ;  Rogers  v.  Odell,  39  N.  H.  417 ;  ground  I  understand  to  be  that  the 

Eaton  &  Hamilton  R.  R.  Co.  v.  Hunt,  defendant  shall  not  be  twice  vexed 

20  Ind.  457 ;  Bradley  v.  Bank  of  In-  for  the  same  cause  of  action,  where 

diana,  20  Ind.  528 ;  Yelverton  v.  Co-  the  court  can  see  that  in  each  the 

nant,  18  N.  H.  123;  Humphries  v.  remedy  is  substantially  the  same."    2 

Dawson,    38    Ala.    199 ;    Seevers    v.  Curtis,  559,  560.    The  learned  justice 

Clement,  28  Md.  426 ;  Davis  v.  Mor-  puts  the  case  upon  the   reasonable 

ton,  4  Bush,  442;  Loyd  v.  Reynolds,  29  principle  that  the  court  wherein  the 
10 


146  TRANSITORY    ACTIONS. 

A  party  having  a  right  of  action  may  proceed  thereon  against 
one  and  the  same  defendant,  or  defendants,  in  the  courts  of  two 
or  more'  States,  at  one  and  the  same  time,  if  the  cause  of  action 
be  a  transitory  one,  but  there  can  be  but  one  satisfaction.' 

It  seems,  however,  that  the  pendency  of  a  suit  in  a  Federal 
court  will  be  good  cause  for  abating  a  suit  between  the  same  par- 
ties, and  involving  the  same  subject  matter,  commenced  in  an- 
other Federal  court. ^  It  has  also  been  held  that  the  ])endency 
of  a  suit  in  the  State  court  may  be  pleaded  in  abatement  to  a  suit 
subsequently  brought  by  the  same  parties,  and  for  the  same 
cause,  in  the  circuit  court  of  the  United  States.^  But  this  is  not 
60  clearly  established,  as  will  be  seen  from  the  cases  cited  in  the 
note.  Where  concurrent  jurisdiction  is  entertained  by  different 
courts,  the  better  reason  seems  to  be  that  the  one  first  obtaining 
cognizance  of  the  case  should  be  a  bar  to  the  other.  Comity  de- 
mands it,  and  the  additional  fact  that  otherwise  the  judgments 
of  the  two  courts  might  conflict.  But  this  might  be  avoided, 
provided,  as  soon  as  judgment  is  obtained  in  one  court,  there 
would  be  a  stop  put  to  the  case  pending  in  the  other.  And  this 
would  give  rise  to  a  race  of  diligence  in  the  courts. 

Judgment  in  Another  State  a  Bar  or  Cause  for  Abatement. 
But,  although  an  action  pending  in  another  State  is  no  bar  to  a 
suit  or  action,  for  the  same  cause  of  action,  in  a  State  court,  or 
cause  for  abating  the  same,  yet  the  general  ruling  is  that  recov- 
eiy  of  a  judgment  in  another  State  for  the  identical  cause  of 
action  is  a  bar  to  an  action  in  the  court  of  a  State,  or  United 
States,  for  by  such  recovery  the  cause  of  action  is  extinguished, 
or  merged  in  the  judgment,  and  no  longer  exists  as  a  ground  of 
recovery.* 

plea  of  lis  pendens  is  pleaded,  ought  v.  Raymond,  4  Id.  233;  Hacker  c.  Ste- 

to  be  able  to  see,  by  inspection  of  the  vens,  4  Id.  535. 

proceedings  relied  on  in  the  other  ac-  ^  Earl  v.  Raymond,  4  McL.  233;  U. 

tion,  that  the   character    thereof   is  S.  v.  Wells,  11  Am.  L.  Reg.  (n.  s.) 

such  as  to  subject  the  defendant  to  a  494.     Contra,  White  v.  Wliitman,  1 

double  recovery  for  the  same  cause  Curt.  4U4;  Whitaker  v.  Brainson,  2 

of  acticm.  before  allowing  the  same  Paine,  209.    See,  also,  Walsh  v.  Dur- 

as  a  cause  of  abatement.    See,  also,  kin,  12  John.  99 ;  Mitchell  v.  Bunch, 

McJilton  tj.  Love,  13  111.487;  Brown  2  Paige,  COO;   Burrows  v.  Miller,   5 

V.  Joy,  9  John.  221.  How.  Pr.  51 ;  Strong  v.  Stevens,  4  Duer, 

'  Hogg  V.  Charlton,  25  Penn.  St.  668. 

200,  and  cases  cited  above.  *  North  Bank  v.  Brown,  50  Maine, 

»  ^x  parfe  Balch,  3  McL.  221 ;  Earl  214;    Bank    of    North    America   v. 


ABATEMENT,    AND    BAR    OF    ACTIONS. 


147 


But  to  be  a  bar  the  adjudication  must  be  of  the  principal  mat- 
ter in  controversy,  and  must  be  final,  upon  the  merits;  it  is  not 
sufficient  if  merely  of  some  collateral  or  interlocutory  motion  or 
proceeding,  to  bar  another  action  or  suit  for  the  principal  cause 
of  action  involved,  or  to  bar  a  like  motion  for  a  collateral  or  in- 
terlocutory order  or  proceeding,  though  the  principal  subject 
matter  of  the  two  suits  be  the  same,  if  of  such  principal  subject 
matter  there  be  not  also  a  former  adjudication  pleaded  and 
proven.  1 


Wheeler,  28  Conn.  433;  Cin.,  etc.,  R. 
R.  B.Wynne,  14  Ind.  385;  Child  v. 
Eureka  Powder  Works,  45  N.  H.  547 ; 
Barnes  v.  Gibbs,  2  Vroom,  317 ;  Mc- 
Gilvrey  v.  Avery,  30  Vt.  538 ;  Rogers 
«.  Odell,  39  N.  H.  452.  And  the  ap- 
plication  of  this  rule  will  not  yield  to 
the  fact  that  an  appeal  has  been  taken 
from  the  judgment.  Bank  of  North 
America  v.  Wheeler,  8upra.    Neither 


will  the  rule  yield  to  the  fact  that 
there  is  no  property  of  the  defendant 
in  the  State  where  the  judgment  was 
obtained,  but  that  there  is  property 
where  the  second  suit  is  attempted  to 
be  brought.  Child  v.  Eureka  Powder 
Works.  45  N.  H.  547, 

»  Brinkley  v.  Brinkley,  50  N.Y.  184, 
203 ;  Lazier  v.  Wescott,  26  N.  Y.  146 ; 
Walsh  V.  Durkin,  12  John.  99. 


148  PENAL   AND   STATUTORY  "ACTIONS. 


CHAPTER     XV. 

PENAL  AND  STATUTORY  ACTIONS   NOT  ENFORCEABLE  IN  OTHER  STATES, 

I.    One  State  cannot  Enforce  the  Statutes  and  Penal  Laws  of 

Another. 
II.    A  State  cannot,  in  VrRTUE  of  its  Own  Penal  Laws,  Punish  Acts 
Committed  Against  the  Laws  of  Another. 

III.  Statutory  Actions  for  Death  of  a  Person. 

IV.  Statutory  Remedy,  by  Indictment,  for  Death  of  a  Fbrson. 
V.    Statutory  Action  for  Penalty  for  Usury. 

I.    One  State  cannot  Enforce  the  Penal  Laws  of  Another. 

Statutory  Penalties.  Statutory  penalties  can  only  be  enforced 
in  the  courts  of  the  State  by  the  laws  of  which  they  are  imposed; 
they  cannot  be  enforced  elsewhere  either  by  force  of  the  statute 
creating  them,  nor  upon  the  principles  of  comity.  *  Thus,  where 
the  capital  stock  of  a  banking  corporation  was  limited  in  amount 
by  law,  and  a  penalty  provided  for  excess  of  increase  thereof,  as 
a  forfeiture  of  the  excess,  it  was  held  that  there  could  be  no 
extra-teri'itorial  enforcement  of  the  forfeiture. ^  And  so,  where 
a  note  was  made  in  one  State,  and  payable  therein,  with  usurious 
provisions,  subjecting  the  parties  to  a  penalty  to  be  paid  to  the 
State  in  behalf  of  the  school  fund,  under  a  statute  which  re- 
quired judgment  in  favor  of  the  State  to  be  rendered  for  such 
penalty,  in  case  of  suit  upon  the  note,  and  an  action  to  enforce 
payment  of  the  note  was  prosecuted  in  another  State,  it  was  held 
that  the  courts  of  such  other  State  could  not  render  judgment 

'  First  Nat.  Bank  of  Plymouth  v.  Van  Reimsdick  c.  Kane,  1  Gall.  371 ; 

Price,  33  Md.487 ;  Derrickson  i?.Smith,  Arnold  c.  Potter,  22  Iowa,  194,  204 ; 

3  Dutch.  116;  Halsey  u.  McLean,  13  Richardson  <o.  Burlington,  33  N.J. 

Allen,  439;  Graham  v.  Monsergh,  23  190;  Tanner  v.  Allen,  Lift.  Sel.  Cases, 

Vt.  543;  Slack  b.  Gibbs,  14  Vt.  357;  25;   Barnes  o.  Whitaker,  23  111.606; 

Indiana  v.  Helmer,  21  Iowa,  370 ;  Sco-  Sherman  v.  Gassett,  9  111.  521. 


villa  «.  Canfield,  14  John.  338,  840 
De  Wolf  «.  Johnson,  10  Wheat.  867 
Van  Shaik  c.  Edwards,  2  John.  355 


*  First  National  Bank  of  Plymouth 
D.  Price,  83  Md.  487. 


DO  NOT  EXTEND  BEYOND  THE  STATE.      149 

for  the  penalty,  and  judgment  was  rendered  for  merely  the  sum 
justly  due.i  In  disposing  of  this  case,  the  Supreme  Court  of 
Illinois,  Caton,  J.,  said:  "With  the  penalties  imposed  by  the 
law  upon  the  usurers,  for  their  violation  of  it,  we  have  nothing 
to  do.  That  is  a  matter  between  the  State  of  Iowa  and  her  citi- 
zens. We  cannot  punish  her  citizens  for  violating  the  laws  to 
which  they  owe  obedience.  We  cannot  render  judgment  in  favor 
of  that  State  for  the  benefit  of  her  school  funds  for  the  penalty 
or  forfeiture  of  ten  per  cent,  per  annum,  which  this  law  imposes. 
We  have  no  jurisdiction  to  vindicate  the  violated  majesty  of  her 
laws,  as  was  held  in  Sherman  v.  Gassett.^  That  task  must  be 
left  to  her  own  tribunals."* 

II.    A  State  cannot,  in  Yirtue  of  rrs  Own  Penal  Laws,  Punish 
Acts  Committed  Against  the  Laws  of  Another  State. 

Penal  Statutes  and  Punishments  are  Local.  Acts  rendered 
penal  by  law  are  penal  only  because  the  law  makes  them  so;  and 
they  are,  therefore,  only  penal  if  committed  where  the  law  is  in 
force  that  makes  them  penal.  It  follows  from  this  that  although 
the  laws  of  a  State  render  certain  acts  penal,  yet  they  are  only  so 
when  the  acts  are  committed  in  that  State.  If  committed  else- 
where, they  are  not  penal,  except  as  they  may  be  against  the  law 
of  the  place  where  committed.  If  the  penal  laws  of  two  States 
be  the  same,  it  does  not  follow  that  an  act  committed  in  one  of 
the  States,  violating  the  penal  law  of  that  State,  also  violates  the 
penal  law  of  the  other  State;  but,  on  the  contrary,  it  only  violates 
the  law  of  the  State  wlierein  it  is  committed.  It  does  not  violate 
the  law  of  the  other  State,  for  the  reason  that  the  law  of  such 
other  State  had  no  force  where  the  act  was  committed ;  and  where 
there  is  no  law  there  is  no  legal  wrong. 

Hence  it  is,  that  the  penal  or  criminal  laws  of  one  State  cannot 
be  invoked  by  such  State  to  enforce  penalties  incurred,  or  to  punish 
acts  done  in  a  different  State.  And  it  does  not  matter  whether 
the  supposed  penalties  be  to  the  public  or  to  persons:  the  rule 
and  the  reason  thereof  are  the  same:  penal  laws  of  one  State  are 
never  enforced  against  acts  committed  or  penalties  incurredxin 
other  States.* 

1  Barnes  v.  Whitaker,  23  111.  609.  »  22  111.  609. 

*  9  111.  531.  *  Graham  v.  Monsergh,  22  Vt.  543. 


150  PENAL    AND    STATUTORY    ACTIONS. 

In  this  case,  Graham  v.  Monsergh^  the  question  involved  was 
one  of  bastardy,  which  occurred  in  another  State.  That  is,  all 
the  circumstances,  including  the  birth  of  the  child,  transpired 
outside  the  territorial  limits  of  Vermont,  and  the  parties  were,  at 
the  time  of  the  occurrences,  non-residents.  The  child  was  born 
in  the  State  of  New  York.  The  proceeding  was  had  under  the 
statute  of  Vermont.  Objection  thereto,  and  amotion  to  dismiss, 
was  made  on  the  ground  that  the  statute  could  "  not  extend  to 
children  begotten  and  born  in  a  foreign  country."  At  the  time 
of  the  arrest  the  mother  was  temporarily  within  the  State  of 
Vermont,  and  the  child  was  in  the  keeping  of  a  family  residing 
therein.  The  reputed  father  was  arrested  in  that  State,  The 
motion  to  dismiss  being  overruled,  defendant  excepted.  The 
case  was  then  tried  on  plea  of  not  guilty;  a  verdict  for  complain- 
ant and  order  of  affiliation  was  entered  against  him  under  the 
statute.  The  case  was  taken  to  the  Supreme  Court,  and  the  whole 
court  agreed  that  such  a  proceeding  was,  in  its  nature,  confined 
to  causes  of  action  arising  within  the  State.  The  learned  Justice 
Eedfield,  delivering  the  opinion,  says:  "  And  if  we  allow  a  case 
which  accrued  in  a  neighboring  State  or  province  to  be  brought 
into  our  courts,  we  could  not  exclude  such  a  case  coming  from 
Japan,  or  Farther  India,  or  Kamschatka;  or  if  we  admit  such 
cases  to  come  into  our  courts  from  countries  where  similar  laws 
•exist,  we  must,  equally,  from  countries  where  no  such  laws  exist, 
and,  for  aught  we  can  perceive,  from  those  countries  where 
polygamy  is  allowed  to  the  fullest  extent.  "We  should  thus  be 
liable  to  become  engaged  in  a  species  of  knight-errantry,  in  a 
ludicrous  attempt  to  redress  the  wrongs  and  regulate  the  police 
of  other  countries,  in  matters  which  very  little  concern  us.  The 
truth  is,  the  proceeding  is  altogether  a  matter  of  internal  police, 
and,  in  its  very  nature,  as  exclusively  local  as  is  the  administra- 
tion of  criminal  justice.  It  is  not  necessary  here  to  consider 
how  far  the  case  of  a  woman,  5c>?i«  -fidey  coming  into  this  State 
to  reside,  before  the  birth  of  the  child,  might  merit  a  diflferent 
consideration.  It  is  supposable,  too,  that,  should  the  birth  of 
such  a  child  occur  during  the  temporary  absence  of  the  mother 
from  the  State,  with  the  continuance  of  the  animus  revertendi^ 
she  might,  on  her  return  to  the  State,  be  entitled  to  proceed 
against  the  father  under  the  statutes."    The  proceeding  was  or- 


DO  NOT  EXTEND  BEYOND  THE  STATE.      151 

dered  to  be  dismissed.  ^  The  case  cited,  Indiana  v.  Ilelmer, 
involved  a  question  arising  out  of  a  bastardy  proceeding  in 
Indiana,  nnder  the  statute  of  that  State,  which  proceeding  was 
matured  into  a  judgment  against  the  defendant  in  Indiana,  and 
the  suit  in  Iowa  was  against  the  same  defendant,  on  the  judg- 
ment. The  judgment,  though  regularly  authenticated,  was,  with 
the  proceedings  of  the  cause  in  Indiana,  of  so  irregular  a  char- 
acter that,  an  attempt  was  made  to  avoid  its  force  by  showing  it 
to  have  been  obtained  under  the  penal  statutes  of  Indiana,  and 
on  the  assumption  that  those  statutes  would  not  be  enforced  in 
another  State.  But  the  Iowa  court,  admitting  that  such  would 
be  the  law  if  the  proceeding  was  based  on  the  Indiana  statute, 
decided  that  the  irregularities  of  the  judgment  did  not  void  its 
validity  while  unreversed,  and  that  as  there  was  jurisdiction  of 
the  defendant  in  Indiana,  the  judgment  itself  would  sustain  the 
action  and  shut  out  all  enquiry  as  to  the  subject  matter  on  which 
it  was  rendered.  In  this  case  the  court.  Cole,  J.,  say,  however, 
as  to  the  extra-territorial  force  of  such  statutes:  "  If  the  mother 
of  the  bastard  child,  begotten  and  born  in  the  State  of  Indiana, 
had  come  to  Iowa,  and  sought  by  legal  proceedings  to  compel 
the  defendant,  its  father,  to  support  it,  and  to  give  bond  therefor, 
and  otherwise  comply  with  the  requirements  of  the  statutes  of 
Indiana,  the  answer  of  the  defendant  that  the  subject  matter  of 
such  action  was  one  of  merely  local  police  regulation  of  Indiana, 
and  not  enforceable  in  this  State,  would  have  been  conclusive, 
and  amount  to  a  complete  defense."  The  court  then  add  that 
such  action  could  no  more  be  maintained  beyond  the  limits  of  the 
sovereignty  within  which  it  arose  than  can  an  action  for  any  other 
penalty  provided  by  statute  of  such  sovereignty  for  the  wrongful 
act  of  a  defendant  therein ;  and  that  both  are  alike  matters  of 
local  and  internal  police,  and  enforceable  alone  by  the  sovereignty 
making  the  regulation  and  providing  the  penalty.  ^  The  case  of 
Richardson  v.  Burlington  was  also  a  bastardy  proceeding.  The 
mother  became  enciente  in  the  State  of  New  Jersey,  being  a  ser- 
vant there,  but  not  having  gained  a  residence  in  any  particular 
town ;  before  the  birth  of  the  child  she  left  the  State  and  became 
an  inhabitant  of  the  State  of  Pennsylvania,  in  which  latter  State 

>  23  Vt.  545,  546.         -  « Indiana  v.  Helmer,  21  Iowa,  370, 

372. 


152  PENAL    AND    STATUTORY    ACTIONS. 

the  child  was  born.  Still  reinaiuing  a  resident  of  Pennsylvania, 
she  returned  to  New  Jersey  and  instituted  the  prosecution  against 
the  alleged  fatliei*;  an  order  was  made  against  him  under  the  stat- 
ute, which,  on  certiorari  to  the  Supreme  Court,  was  set  aside  on 
the  ground  that  the  case  was  not  within  the  statute.  The  court 
say  the  statute  "  was  not  intended  for  the  relief  of  other  States 
or  their  townships;"  nor  was  it  intended  "  to  maintain  the  bas- 
tards of  such  lewd  women  as  may  come  into  a  township  and  sta}' 
just  long  enough  to  become  impregnated,  and  then  depart,  and 
afterwards,  in  some  foreign  jurisdiction,  give  birth  to  their  ille- 
gitimate conceptions."  1  In  the  Vermont  case  above  cited,  Gra- 
ham V.  Monsergh,  the  difficulty  occurred  in  Canada;  the  child 
was  born  in  l^ew  York,  and  the  proceedings  were  set  on  foot  in 
Vermont,  where  the  alleged  father  was  found.  In  the  case  cited 
from  New  Jersey,  Richardson  v.  Burlington,  the  trouble  orig- 
inated in  that  State  where  the  woman  was  temporarily  in  service; 
she  afterwards  became  an  inhabitant  of  Pennsylvania,  and  in 
that  State  the  child  was  born.  The  mother  then  went  tempora- 
rily into  New  Jersey,  found  the  father  of  the  child,  and  there 
commenced  proceedings  against  him  under  the  statute.  It  is 
seen  that  these  bastardy  statutes  are  regarded  as  ])enal  statutes 
and  police  regulations,  and  that,  having  no  extra-territorial  force, 
they  do  not  apply  to  cases  occurring  in  other  States;  and  that,  on 
the  other  hand,  the  statutes  of  the  other  States,  where  the  cases, 
by  the  births,  occurred,  had  no  force  inside  of  the  territorial 
limits  of  the  States  where  the  proceedings  w^ere  invoked:  that  is, 
were  not  the  law  of  the  forum.  In  other  terms,  that  all  such 
penal  and  police  statutes,  on  whatever  subject,  are  local.  In 
"Wisconsin  there  is  a  contrary  ruling,  but  it  is  put  upon  this 
principle,  as  alleged,  the  obligation  to  suj)port  the  child  arising 
from  paternity,  saying  nothing  about  the  statute  or  obligation  of 
the  statute.  The  case  was  this:  Conception  occurred  in  Wis- 
consin, but  the  birth  occurred  in  Illinois;  after  a  time  the  mother 
returned  to  "Wisconsin  and  instituted  proceedings  under  the  stat- 
ute against  the  alleged  father.  The  court  sustained  the  jurisdic- 
tion without  making  any  reference  to  the  statutory  liability,  but 
upon  the  general  principle  of  an  obligation  of  the  parent,  which, 
though  recognized  as  to  legitimate  children,  is  not,  as  we  con- 

»  33  N.  J.  192. 


DO    JS^OT    EXTEND    BEYOND    THE    STATE.  153 

ceive,  except  bj  statute,  as  to  such  as  are  illegitimate.  In  tlie 
Wisconsin  case,  the  court  having  been  referred  to  the  case  above 
cited,  of  Gralmm  v.  Monsevgh,  avoid  the  force  thereof  by  rest- 
ing their  decision  on  the  obligation  of  paternity  alone.  The 
court  say,  Gole,  J. :  "  The  obligation  of  the  father  to  support  a 
bastard  child  grows  out  of  the  paternal  relations  existing  between 
him  and  such  child,  and  we  therefore  deem  it  quite  immaterial, 
so  far  as  his  obligation  and  duty  are  concerned,  whether  the  child 
is  born  out  of  the  State  or  not.''^  We  do  not  regard  this  Wis- 
consin case  as  an  authority  in  a  legal  point  of  view,  liowever 
strong  the  moral  obligation.  But,  irrespective  of  its  soundness, 
it  does  not  militate  against  the  principle  assumed  as  law  by  us 
in  the  matter  here  under  discussion,  as  to  the  extra-territorial 
enforcement  of  penal  statutes. 

The  case  of  Slack  v.  Gibhs  is  another  one  strongly  illustrative 
of  the  principle  here  ttsserted.  By  the  statute  of  Vermont,  a 
conveyance  of  property  made  to  defraud  creditors,  is  made  a 
penal  offense  as  against  the  jj^arties  to  such  conveyance.  A 
debtor  citizen  of  that  State,  being  on  his  way,  with  horses  for 
market,  to  Boston,  made,  as  alleged,  a  fraudulent  conveyance  of 
them  in  New  Hampshire,  while  passing  through  that  State,  and 
with  intent  to  defraud  his  Vermont  creditors.  In  an  action  for 
the  penalty,  instituted  in  a  court  of  Vermont,  the  court  held  that 
such  action  would  not  lie,  under  the  statute  of  Vermont,  for  a 
fraudulent  conveyance  made  in  another  State;  and,  though  the 
Supreme  Court,  on  another  point,  reversed  the  judgment,  they 
ruled,  however,  with  the  court  below,  that  the  action  would  not 
lie  in  a  case  where  the  act  prohibited  was  committed  in  another 
State. 2  In  the  same  case,  the  Supreme  Court  of  Vermont,  Wil- 
liams, J.,  say:  "  A  conveyance  of  property,  however  fraudulently 
intended  or  conceived,  made  in  another  State,  cannot  be  a  breach 
of  our  penal  laws,  or  subject  the  party  to  a  penalty  therefor.  Our 
laws  are  of  no  efficacy  out  of  the  territorial  limits  of  the  State, 
and  however  immoral  a  transaction  may  be,  committed  in  an- 
other jurisdiction,  it  cannot  be  punished  here  as  a  violation  of 
the  laws  of  this  State." 3  ^ 

To  the  effect  that  the  statutory  actions  of  one  State  cannot  be 

'  Duffles  V.  The  State,  7  Wis.  672.  tions  in  Vermont  are   civil  actions. 

'  Slack  ■».  Gibbs,  14  Vt.  357.    And      Waters  ®.  Day,  10  Vt.  487. 
though  it  was  a  qui  tarn,  yet  such  ac         »  Slack  v.  Gibbs,  14  Vt.  364. 


154  PENAL    AND    STATUTORY    ACTIONS. 

enforced  in  another  State,  nor  actions  arising  on  statutory  liabil- 
ities, it  is  rnled  in  Vermont  that  the  bond  of  a  guardian  taken 
in  another  State,  in  the  probate  court  of  snch  State,  under  a  law 
prescribing  the  conditions  and  terras  of  liability  thereon,  cannot 
be  enforced  in  a  different  State.  In  tlie  case  referred  to,  the 
court,  PiERPONT,  C.  J.,  say:  "The  bond  is  ]iurely  a  creature  of 
the  statute  law  of  New  Hampshire,  taken  according  to  its  re- 
quirements, and  for  a  purpose  specified  and  declared  by  such  law. 
*  *  ^  The  whole  proceeding  was  understood  and  intended  to 
be  local  in  its  operation,  to  be  consummated  in  that  State,  and 
under  its  laws.''^ 

There  is  a  late  ruling  in  Illinois  that  the  expectant  mother  ot 
an  illegitimate  child  may  follow  the  putative  father  into,  and 
prosecute  him  in,  that  State,  for  bastard}',  under  the  statute  of 
Illinois,  although  she  be  a  resident  of  another  State,  in  which 
the  trouble  occurred,  and  of  which  both  parties  were  citizens  at 
the  time  the  act  was  committed  by  which  she  became  pregnant, 
and  although  the  child  be  not  yet  born.  The  objection  was 
raised,  on  the  trial,  that  the  complainant  was  not,  and  never  had 
been,  a  citizen  or  resident  of  Illinois,  but  it  was  overruled  by 
the  lower  court,  and  the  judgment  ^vas  affirmed  in  the  Supreme 
Court.  The  Supreme  Court  say:  "The  case  is  certainly  within 
the  letter  of  the  law.  The  majority  of  the  court  do  not  feel  at 
liberty  to  hold  that  the  operation  of  the  statute  is  limited  in  this 
respect  by  implication. "^     ^N"©  authorities  are  cited. 

It  will  not  do  to  liken  the  inter-State  right  of  suit,  in  statu- 
tory actions,  though  they  be  in  their  nature  transitory  in  the 
State  where  they  accrue,  to  the  right  to  sue  in  transitory  cases  in 
different  counties  —  suits  in  the  same  State  where  the  actions  ac- 
crue. In  the  latter  case,  the  sovereignty  is  still  the  same,  and 
the  statute  is  in  force  in  all  the  counties  throughout  the  territo- 
rial boundaries  of  that  sovereignty;  whereas,  in  the  former,  the 
statute  giving  the  right  of  action  is  of  no  force,  in  proprio  vigore^ 
outside  of  the  State  by  which  it  is  enacted. 

Difference  between  Common  Law  and  Statutory  Transitory- 
Actions.  There  is  this  difference,  in  that  respect,  as  to  the  pros- 
ecution of  common  law  rights  of  transitory  actions  in  one  State 

'  Judge  of  Probate  v.  Hibbard,  44      court  regarded  the  statute  as  intended 
Vt.  597 ;  Pickering  v.  Fisk,  6  Vt.  102.      mainly  for  the  personal  benefit  of  tho 
"  Koble  V.  People,  85  111.  336.    The      woman. 


STATUTORY    ACTIONS    FOR    DEATH.  155 

or  country,  which  have  accrued  in  another,  and  are  of  a  personal 
and  transitory  character,  and  are  based  on  contract  rights  or  per- 
sonal injuries  recognized  as  such  bj  the  principles  of  universal 
law.  These  are  maintainable  in  all  countries,  wherever  there  are 
tribunals  that  take  cognizance  of  and  vindicate  such  rights  and 
injuries;  not,  however,  because  of  the  local  law  of  such  coun- 
tries, but  because  of  the  universal  law,  which  gives  and  vests 
such  right  of  action,  and  which  exists  everywhere,  whether 
locally  enacted  or  not.^  In  such  case,  although  the  remedy  is 
given  by  the  law  of  the  /orum,  yet  the  right  of  action  is  given 
by,  and  bears  relation  to,  a  universal  law  of  civilization;  thus,  if 
a  man  be  assaulted  or  beaten  on  a  previously  unknown  island, 
where  there  is  no  law,  and  on  which  the  parties  are  casually 
thrown,  yet  a  right  of  action  therefor  exists,  and  may  be  en- 
forced, in  any  state  or  country  where  there  are  courts  that  adju- 
dicate personal  rights,  if  the  aggressor  is  there  found  and  served 
with  the  local  process.  So,  if  in  such  place  hitherto  unknown  a 
contract,  not  immoral  or  wrong  in  itself,  be  made  by  parties,  and 
for  a  valuable  consideration,  the  right  thereon,  if  of  a  transitory 
nature,  by  the  common  or  civil  law,  may  elsewhere  be  sued  and 
enforced,  in  the  courts  of  all  countries  where  there  are  tribunals 
for  the  enforcement  of  personal  rights,  and  this,  too,  upon  thei 
principle  of  universal  law.  The  only  question,  in  either  case,  is 
the  -question  of  comity,  as  to  the  right  of  an  alien  or  citizen  of 
another  State  to  sue,  if  the  plaintiff  be  such;  but  if  the  plaintiff 
be  a  citizen  or  subject  of  the  State  or  country  where  the  suit  is 
brought,  then  no  question  whatever  as  to  his  right  to  legal  re- 
dress  can  arise,  except  the  necessity  of  making  out  a  cause  of 
recovery. 

III.     Statutory  Actions  for  Death  of  a  Person. 

There  is  a  species  of  actions,  of  modern  origin,  which  are  alike 
unknown  to  the  common  law  and  to  the  ordinary  body  of  the 
qui  tarn  and  other  statutory  actions.  Though  local  they  are  not 
real  actions:  though  personal,  they  are  not  transitory.  They  are 
given  by  statute,  are  of  a  police  nature,  and  can  only  be  brought 
and  enforced  in  the  State  where  the  statute  that  gives  them,  and 

'  Gardner  v.  Thomas.  14  John.  135 ;  Johnson  ».  Dalton,  1  Cow.  543 ;  McKenna 
».  Fiske,  1  How.  241. 


156  PENAL    AND    STATUTORY    ACTIONS. 

under  which  they  occur,  is  in  force.  *  They  are  not  strictly  qui 
tani  actions,  but  yet  they  are  of  a  penal  and  police  nature,  their 
object  being  as  well  for  security  of  the  public  against  accidents 
and  wrongs  as  to  aflford  personal  compensation  to  those  who 
suffer  from  the  acts  and  omissions  which,  by  these  statutes,  are 
made  actionable.* 

Of  this  class  of  actions  are  those  given  by  statute  for  the  death 
of  a  person,  when  caused  by  a  wrong  act,  or  negligence;  actions 
given  by  statute  to  the  wife,  for  inducing  drunkenness  of  the 
husband  by  selling  to  him  intoxicating  liquor;  actions  against 
railroad  corporations  for  injuries  to  live  stock,  upon  their  roads, 
where  they  have  omitted  to  fence  their  roads;  penalties  for  taking 
excessive  rates;  penalties  for  usury;  actions  given  by  statute 
against  the  employer,  for  a  personal  injury  to  a  servant,  caused 
by  the  negligence  of  a  co-servant;  and  other  statu toiy  actions  of 
like  character. 

To  illustrate  more  fully  the  impracticability  of  enforcing  these 
actions  in  the  courts  of  a  different  State  than  that  wherein  they 
accrue,  and  by  statute  are  given,  we  will  briefly  advert  to  the 
nature  and  remedy  of  some  of  them  separately. 

Unknown  to  the  Common  Law.  The  actions  are  of  recent 
origin,  both  in  England  and  in  America.  They  exist  only  by 
statute.  No  such  actions  lay  at  common  law.  These  statutes 
not  only  confer  right  of  action,  some  of  them  allowing  suit  by 

»  Whitford  r.  Panama  R.  R.  Co.,  23         »  Blair  ».  Mil.  &  Prairie  du  Chien 

N.  Y.  465;  Pickering  v.  Fisk,  6  Vt.  R.  R.  Co.,  20  Wis.  254,  258;  Corwin  t. 

102;  Judge  of  Probate  v,  Hibbard,  44  New  York  &  Erie  R.  R.  Co.,  13  N.  Y. 

Vt.  597;   Woodward  v.  Mich.  So.  «fe  42;  Mayberry  r.  Concord  R.  R.Co.,47 

Indiana  R.  R.  Co.,  10  Oliio  St.  121 ;  N.  H.  391 ;  Gorman  t.  Pacific  R.  R. 

Richardson  v.  New  York  Cent.  R.  R.  Co.,  26  Mo.  441 ;  Trice  v.  Hannibal  & 

Co.,  98  Mass.  85 ;  First  Nat.  Bank  of  St.  Jo.  R.  R.  Co.,  49  Mo.  438 ;  Penn.  R. 

Plymouth  ■C.Price,  33  Md.  487;  Der-  R.  Co.  v.  Riblet,  66  Penn.   St.   164; 

rickson  c.  Smith,  3  Dutch.  116;  Hal-  Flint  &  Pere  MarqueUe  R.  R.  Co.  t. 

sey  V.  McLean,  12  Allen,  439;  Selma,  Lull,  28  Mich.  510;  Bulkley  v.  New 

Rome  «fe  Dalton  R.  R.  Co.  v.  Lacey,  43  York  &  New  Hav.  R.  R.  Co.,  27  Conn. 

Geo.  461 ;  Nashville  &  Chat.  R.  R.  Co.  479 ;  New  Albany  &  Salem  R.  R.  Co. 

t.  Eakin, 6  Cold.  582 ;  Holland  v.  Pack,  t.  Tilton,  12  Ind.  3 ;  Ohio  &  Miss.  R. 

Peck,  151 ;  Cherry  v.  Slade.  3  Murphy,  R.  Co.  i'.  McClelland,  25  111.  140 ;  111. 

82 ;  Southwest.  R.  R.  Co.  v.  Paulk,  24  Cent.  R.  R.  Co.  v.  Carraher,  47  111.  333 ; 

Geo.  356 ;  Hover  v.  Penn.  R.  R.  Co..  25  Fisher  v.  N.  Y.  Cent.  R.  R.  Co.,  46  N. 

Ohio  St.  667;  Western  &  Atl.  R.  R.  Y.  644;  Indiana  v.  Helmer,  21  Iowa, 

Co.  V.  Strong,  52  Geo.  461 ;  McCarthy  v.  370. 
Chi.,  R.  I.  &  P.  Ry.  Co.,  18  Kansas,  46. 


STATUTORY    ACTION^S    FOR    DEATH.  157 

certain  of  next  of  kin,  and  some  by  the  administrator  or  exec- 
utor of  deceased,  but  also  designate  the  beneficiaries  of  the  recov- 
ery, and  direct  to  whom  the  same  shall  be  paid.  Others,  in 
default  of  there  being  such  beneficiaries,  direct  the  money  recov- 
ered to  go  as  assets  of  the  general  fund  of  the  decedent's  estate. 
Some  of  them  fix  a  maximum  sum,  beyond  which  there  is  to  be 
no  recovery;  others  leave  the  amount  to  the  jury;  others  again 
lay  down  an  arbitrary  sum,  which  is  to  be  recovered  in  alh cases 
of  conviction.  In  New  York  the  action  belongs  to  the  personal 
representatives  of  the  deceased,  and  proof  of  actual  damages  is 
not  necessary  to  a  recovery. i  But  the  husband  is  not  entitled 
as  for  the  death  of  his  wife;  it  is  only  to  the  personal  represen- 
tatives, and  if  the  injury  had  she  lived  would  have  sustained  an 
action  by  herself  and  husband. 2  In  Illinois^  the  action  is  to 
the  personal  representatives. ^  So,  in  'Wisconsin^  the  action  is  to 
the  personal  representatives;  and  when  the  recovery  is  for  the 
widow  the  measure  of  damages  is  the  pecuniary  loss  in  not  having 
the  support  of  the  deceased,  to  herself  and  children,  and  the  ad- 
ditions he  would  have  made  to  his  property  by  his  earnings.'*  In 
New  York.,  the  husband  is  not  treated  as  next  of  kin  in  distribution 
of  proceeds  of  recovery  for  death  of  his  wife.^  In  California, 
exemplary  damages  may  be  given. ^  In  Iowa,  the  action  for  the 
death  of  an  infant  is  limited  in  recovery  to  the  probable  earnings 
after  attaining  to  his  majority,  and  suit  is  to  be  in  the  name  of 
the  administrator;  for  loss  of  service  during  minority,  the  father 
is  to  sue,  or  if  no  father,  or  by  the  father  abandoned,  then  proceed- 
ings are  at  the  suit  of  the  mother.'  In  Illinois.,  only  pecuniary 
compensation  is  recoverable:  nothing  for  grief,  or  suffering,  or 
loss  of  society.  8  In  Colorado,  the  existence  of  any  kindred 
named  in  the  statute,  gives  the  action. ^  In  Illinois,  the  injury 
must  be  such  that  the  deceased  could  have  maintained  an  action 
therefor  if  he  had  lived,  and  there  must  be  left  a  widow  or  next 

'  Keller  v.  New  York  Cent.  K.  R.         "  Drake  v.  Gilmore,  52  N.  Y.  389. 
Co.,  2  Abb.  Dec.  480 ;  Dickens  v.  New         •  Myers  v.  San  Francisco,  42  Cal. 

Y.  Cent.  R.  R.  Co.,  1  Abb.  Dec.  504.  215. 

'  Green  -».  Hudson  River  R.  R.  Co.,         '  Walters  «.  Chicago,  R.  I,  &  Pac. 

2  Keyes,  294.  R.  R.  Co.,  41  Iowa,  71. 

3  Barron  v.  111.  Cent.  R.  R.  Co ,  1         «  Brady  v.  Chicago,  4  Biss.  448. 
Biss.  412,  453;  Hagen  v.  Kean,  3  Dill.  »  Kansas  P.  R.  R.  Co.  v.  Miller,  3 

124.  '  Col.  442. 

*  Castello  n.  Landwehr,  28  Wis.  522. 


158  PENAL    AND    STATUTORY    ACTIONS. 

of  kin:  if  these  requirements  are  shown  a  case  is  made  for  nom- 
inal damages.  1  In  Georgia^  a  parent  cannot  recover  for  death 
of  an  infant  child,  unless  special  showing  of  i)ecuniary  damages. ^ 
But  by  the  code,  the  suit  is  to  the  widow  and  children  only.^  In 
Massachnsetts^  under  a  statute  giving  an  action  for  loss  of  life 
of  railroad  passenger,  the  damages  are  limited  to  not  over  five 
thousand,  nor  under  five  hundred,  dollars,  recoverable  by  indict- 
ment for  the  benefit  of  the  widow,  if  there  be  one,  and  of  the 
decedent's  heirs.*  In  Maine,  likewise,  the  recovery  is  limited 
to  five  thousand,  and  not  less  than  five  hundred,  dollars,  and  is 
for  benefit  of  the  widow  and  children,  if  such  there  be,  and  if  no 
•widow,  then  to  the  children,  and  in  case  of  no  children,  then  to 
the  widow,  if  there  be  one."^  And,  although  recoverable  by  in- 
dictment, the  proceeding  is  regarded  as  a  civil  one,  and  the  same 
niles  and  principles  of  law  are  applied  as  in  an  ordinary  civil 
action  would *be,  for  the  same  cause. 

We  have  given  these  illustrations  to  show  the  diversity  of  pro- 
visions on  the  subject,  in  the  diiferent  statutes  of  the  several 
States. 

The  Eemedy  is  Local.  When  we  consider  that  such  statutes 
have  no  force  in  other  States  than  where  enacted,  and  that  they 
not  only  give  the  right,  but,  in  many  cases,  prescribe  the  remedy, 
and  also  direct  to  whose  benefit  recovery  is  to  inure,  we  perceive 
at  once  the  impossibility  of  enforcing  them  in  other  States,  even 
by  comity,  inasmuch  as  the  courts  of  each  State  are  governed  by 
the  local  laws  in  respect  to  remedies.  Take  a  case  arising  in  Mas- 
sachusetts, where  the  right  to  recover  is  restricted  to  indictment, 
would  an  indictment  lie  in  an  adjoining  or  neighboring  State 
for  such  a  case?  Surely  not;  and,  if  not,  would  an  action  at  law? 
Of  course  not;  for  not  even  in  Massachusetts,  where  the  injury 
occurred,  could  such  an  action  be  maintained.  But  it  is,  in  such 
a  case,  not  merely  a  difficulty  as  to  remedy,  but  no  right  of 
recovery  exists,  outside  oi  Massachusetts,  inasmuch  as  the  statute 
which  gives  the  right  is  not  in  force  anywhere  else  than  in  said 
State. 

'  Quincy  Coal  Co.c.  Hood,  77  111.  68.  •♦  Carey  t.  Berkshire  R.  R.  Co.,  1 

'  Allen  V.  Atlanta    Street-Railroad  Cush.  475. 

•Co.,  54  Geo.  503.  "  State  v.  Grand  Trunk  Ry.  Co.,  58 

«  tinier  V.  Southwestern  R.  R.  Co.,  Maine,  176. 
55  Geo.  143. 


STATUTORY    ACTIONS    FOR    DEATH.  159 

If,  Oil  tlie  other  Land,  we  take  a  case  arising  in  New  York,  it 
is  only  by  force  of  the  New  York  statute  that  it  is  actionable, 
and  that  statute  being  local,  or  having  no  force  in  Massachusetts, 
no  right  of  action  exists  on  such  a  case  in  Massachusetts,  and  no 
recovery  can  therein  be  liad.  Such  proceedings  are  partly  of  a 
police  nature,  and  no  State  can  enforce  the  police  or  administra- 
tive policy  or  powers  of  another. 

In  the  case  of  Selma,  Borne  <&  Dalton  Railroad  Co.  v.  Lacey, 
above  cited,  the  action  was  brought  in  Georgia  for  the  death  of  a 
person  killed  in  tlie  State  of  Alabama,  Defendant  demurred  to 
plaintiif 's  declaration,  among  other  causes,  substantially  on  the 
ground  that  the  action  would  not  lie  in  the  courts  of  Georgia, 
for  an  injury  committed  in  another  State,  under  the  statute  of 
such  other  State  giving  an  action  therefor.  The  demurrer  was 
overruled,  and  defendant  took  an  appeal  from  the  judgment  on 
the  demurrer.  The  supreme  court  of  Georgia  reversed  the  judg- 
ment below,  holding  that  the  action  would  not  lie,^  Were  the 
statutes  of  each  State  the  same,  yet  the  enforcement  of  such  a 
right  by  comity^  as  suggested  by  the  learned  judge  in  the  Georgia 
■case  above  cited,  would  be  none  the  less  impracticable,  for  one 
State  cannot  enforce  the  penal  or  police  laws,  or  administer  the 
remedial  statutes  of  another,  Neither  can  a  State  enforce  its 
own  laws  of  that  character  upon  rights  and  liabilities  created, 
imposed  and  existing  by  and  under  the  statutes  of  another  State. 
To  do  so  would  be  pure  usurpation  of  authority  in  the  officers 
exercising  such  a  power.  ^     It  is  not  so  much  the  similarity  as  it 

'  Selma,  Rome  «&  Dalton  R.  R.  Co.  '  leged  cause  of  action,  then  it  would 
■».  Lacey.  43  Geo.  461.  In  this  case  have  presented  a  different  question." 
the  court  say,  Warner,  Judge :  "The  *  *  *  "If  it  had  been  alleged  in 
right  of  the  plaintiff  to  recover  dam-  the  declaration  that  the  lavr  of  the 
ages  for  the  homicide  of  her  husband  State  of  Alabama  gave  to  the  plain- 
is  conferred  by  a  special  statute  of  tiff  a  right  of  action  to  recover  dam- 
this  State  —  Code,  2920 — but  the  stat-  ages  there  for  the  injury,  and  it  had 
ute  of  this  State  has  no  extra-territo-  shown  what  that  law  was,  then  the 
rial  operation,  and  tlie  courts  or  this  courts  of  this  State  might,  in  the  spirit 
State  cannot  administer  it  for  the  pur-  of  comity,  have  enforced  that  law 
pose  of  redressing  injuries  inflicted  here.''  43  Geo.  462,  463.  But  even 
in  the  territory  of  Alabama.  If  it  then  it  would  have  to  appear  that  the 
had  been  affirmatively  shown  that  the  laws  of  the  two  States  in  that  respect 
law  of  the  foreign  jurisdiction  in  were  "  similar."  lb. 
which  the  injury  was  done  was  sim-  ^  Foster  v.  Glazener,  27  Ala.  391. 
ilar  to  that  of  our  own,  as  to  the  al- 


160  PENAL    AND   STATUTORY    ACTIONS. 

is  the  universality  of  laws  of  different  States  that  enables  them 
to  exercise  jurisdiction  by  comity.  That  law  which  is  universal 
is  necessarily  municipal  or  domestic,  and  exists  as  such,  whether 
enacted  or  not.  Moreover,  in  some  States,  as  we  have  already 
shown,  the  remedy  for  injuries  causing  the  death  of  a  person  is 
by  an  indictment,  and  not  in  the  form  of  an  adversary  action. 
The  party  through  whose  wrong  act  or  negligence  the  death  is 
ocexisioned  is  subjected  to  indictment  at  the  hands  of  the  grand 
jury.  The  same  law  that  creates  the  liability  and  gives  to  tlio 
kindred  the  right  to  compensation  fixes  the  remedy  by  indict- 
ment, in  the  name  of  the  State,  instead  of  an  action  by  the  par- 
ties in  interest  or  the  administrator  of  the  deceased.  Yet  the 
proceeding  by  indictment  is  essentially,  in  other  respects,  of  a 
civil  nature,  and  the  trial  is  governed  by  the  rules  of  law  perti- 
nent in  such  cases  to  civil  proceedings. i  So,  in  other  of  the 
States,  the  remedy  by  civil  action  is  expressly  confined  to  certain 
localities  of  the  State;  as,  for  instance,  in  the  State  of  Iowa, 
snch  actions  against  railroad  coi'porations  may  be  brought  in  any 
county  through  which  the  line  of  their  roads  run;  also,  actions 
for  injuries  to  live  stock,  as  for  want  of  a  fence,  under  the  statute 
rendering  railroad  companies  liable  in  such  cases  for  double  dam- 
ages, in  like  manner  suable  in  any  county  where  the  line  of  their 
road  is  operated ;2  that  is,  by  intendment  in  any  such  county  in 
the  State  where  the  injury  accrues,  and  the  law  exists  that  makes 
it  actionable.  In  such  cases  the  action  is  not  maintainable  in 
other  counties,  though  in  the  same  State;  and  if  not,  much  less 
so  in  an  entirely  different  State.  One  of  the  ablest  and  most  re- 
cent expositions  of  this  subject  is  the  case  of  McCarthy  v.  The 
Chicago  Rock  Island  ds  Pacific  Railway  Co..,  above  cited,  de- 
cided in  the  supreme  court  of  Kansas  in  1877.  The  plaintiff 
sued  as  administrator  of  one  McCarthy,  deceased,  who  was  killed 
in  Missouri  through  the  negligence  of  the  defendant.  The  de- 
ceased resided  in  Kansas;  was  taken  there  when  injured;  there 
died,  by  reason  of  the  injury;  administration  was  there  granted 
to  plaintiff;  and  suit  was  brought  in  that  State,  in  the  State 
court;  judgment  for  defendant  was  rendered  on  demurrer,  and 
the  judgment  was  aflBrmed  in  the  supreme  court.  The  causes 
assigned  for  demurrer  were,  substantially: 

'  Carey  t.  Berkshire  Railroad  Com-      Trunk  Railway  Company,  58  Me.  176. 
pany,  1  Cush.  475 ;   State  v.  Grand         *  Code  of  Iowa,  1873,  g§  1389,  2582. 


STATUTORY    ACTI0:N^S    FOR    DEATH.  161 

First.  Tliat  the  court  liad  not  jurisdiction  of  the  cause. 

Second.  "Want  of  legal  capacity  of  plaintiff  to  sue. 

Third.  That  the  petition  did  not  embody  a  cause  of  action. 

The  supreme  court  held  that  the  Kansas  statute  had  no  (ga?^r«- 
^err'^VoHa?  jurisdiction,  and  not  being  in  force  where  the  injury 
occurred,  no  action  therefor  would  lie,  under  the  Kansas  statute, 
upon  which  the  suit  ^va8  brought,  and  this,  too,  notwithstanding 
the  fact  that  the  death  occurred  in  the  State  of  Kansas. 

In  answer  to  the  argument  or  point  made  for  plaintiff,  that  the 
statute  of  Missouri  on  the  same  subject,  in  the  absence  of  a  dif- 
ferent showing,  was  presumed  to  be  similar  to  that  of  Kansas, 
and  that  therefore  the  action  should  be  sustained  under  the  Mis- 
souri statute,  the  court  held,  that  taking  the  statutes  to  be  alike, 
yet  such  conclusion  did  not  necessarily  follow.  In  this  connec- 
tion the  court  say,  Horton,  C.  J. :  "  Every  statute  of  another 
State,  giving  a  right  of  action,  cannot  be  enforced  in  a  spirit  of 
comity  in  this  State,  even  if  such  statute  is  set  forth  in  the  peti- 
tion tiled  in  the  court;  and  a  verj'  different  principle  is  involved 
between  presuming  the  laws  of  sister  States  like  our  own  to  sus- 
tain title  to  property  within  this  State  in  litigation,  and  holding 
that  the  laws  of  other  States  are  similar  to  ours,  in  enforcing 
through  our  courts  either  the  penal  or  remedial  statutes  of  such 
other  State."  1 

In  this  case,  after  referring  to  most,  if  not  all,  of  the  previ- 
ously decided  American  cases,  and  ably  illustrating  the  imj)rac- 
ticability  of  such  iyiter-^toXe  jurisdiction,  the  court  affirms  the 
decision  of  the  lower  court  by  a  unanimous  ruling. 

The  case  of  Whitford.,  admim^istrator,  v.  Panama  Railroad 
Company  is  a  forcible  illustration  of  the  same  principle.  The 
Panama  Railroad  Company  is  a  New  York  corporation,  organ- 
ized under  special  charter  granted  by  the  State  of  New  York, 
and  existing  as  a  corporation  in  that  State,  but  operating  a  road 
built  by  it  across  the  Isthmus  of  Panama.  A  passenger  lost  his 
life  from  an  injury  received  upon  that  road,  resulting  from  the 
negligence  of  the  company  of  such  a  character  as  would,  if  it 
had  occurred  in  the  State  of  New  York,  have  rendered  the  com- 
pany liable  under  the  New  York  statute  giving  an  action  for  the 
death  of  a  person  caused  by  negligence.     Whitford  took  out  let- 

»  McCarthy  t>.  Chicago,  R.  I.  «fc  P.  R.  R.  Co.,  18  Kansas,  46. 
11 


162  PENAL    AND    STATUTORY    ACTIONS. 

ters  of  adminietration  in  New  York  upon  the  estate  of  the  de- 
ceased at  the  place  of  the  decedent's  domicile,  and  brought  suit 
in  New  York  against  the  company  as  a  New  York  company,  under 
the  statute  of  New  York.  The  court  of  appeals  held  that  the  stat- 
utory action  would  not  lie  in  that  State  for  injury  resulting  in  the 
death  of  a  person  inflicted  within  the  jurisdiction  of  another  State 
or  country.  That  the  fact  of  the  defendant  being  a  New  York  cor- 
poration, and  the  deceased  being  at  the  time  of  the  injury  and  his 
death  a  citizen  of  that  State  did  not  alter  the  case  in  that  respect. 
As  to  sustaining  the  action  upon  the  principles  of  comity,  it  was 
held  that  such  privilege  extends  only  to  the  common  law  injuries 
and  rights  of  action  and  not  to  actions  for  a  new  cause  given  by 
statute.  The  court  say:  "  Plaintiff  cannot  in  this  action  recover 
by  virtue  of  our  statute,  for  injuries  which  occurred  to  his  intes- 
tate hap])ening  where  that  statute  had  no  force.  It  is  not  neces- 
sary to  add,  that  a  statute  of  a  State  of  this  Union  has  no  extra 
territorial  force." ^  It  was  held  that  though  the  injury  be  such 
that  the  injured  person  might,  if  living,  maintain  a  common  law 
action  therefor  in  a  different  State  from  that  wherein  the  injury 
occurred,  upon  the  presumption  that  the  great  principles  of  nat- 
ural right  and  justice  and  of  the  common  law  there  prevailed  at 
the  time  of  the  injury,  whereby  a  common  law  right  of  action 
accrued  to  the  party  for  the  injury  and  its  consequences,  yet  no 
such  right  of  action  devolves  upon  the  personal  representative  of 
the  injured  person,  if  death  ensue  from  the  injury,  for  at  com- 
mon law  such  right  of  action  does  not  survive;  but,  on  the  con- 
trary, the  action  in  behalf  of  the  personal  representative  is  given 
by  the  statute  and  is  for  a  new  grievance  or  injury  to  a  different 
party,  to-wit:  for  the  deprivation  suffered  by  a  certain  next  of 
kin  of  their  natural  support  and  protection  caused  by  the  death, 
and  is  made  by  the  statute  the  subject  of  a  new  cause  of  action.  2 
The  case  of  Richardson  v.  The  New  York  cfc  Erne  Railroad 
Company  was  brought  in  Massachusetts,  by  a  Massachusetts 
administrator  of  a  person  who  was  killed  in  the  State  of  New 
York  upon  the  railroad  of  the  defendant,  by  reason,  as  alleged, 
of  the  negligence  or  wrong  act  of  the  defendant.  The  statute  of 
New  York  gave  to  the  administrator  an  action  in  such  cases. 
The  suit  was  predicated  on  the  statute  of  New  York.     The  case 

>  23  N.  Y.  465,  481.  « Whitford  v.  Panama  R  R.  Co.,  23 

N.Y.465,  470. 


STATUTORY    ACTIONS    FOE    DEATH.  163 

was  decided  on  demurrer,  whicli  was  as  follows:  "Ko  action 
can  be  maintained  in  this  State  by  the  plaintiff  under  or  by 
reason  of  any  statute  law  of  the  State  of  Kew  York."  The 
supreme  court  of  Massachusetts  held  the  demurrer  well  taken, 
and  decided  that  the  action  would  not  lie  in  that  State. 

That  court  held  that  the  right  of  action  conferred  was  not  a 
right  of  property,  passing  as  assets  to  the  personal  representative 
of  the  deceased,  but  was  a  specific  power  to  sue  created  by  the 
local  law  of  New  York,  and  did  not  pass  to  the  Massachusetts, 
but  only  to  a  New  York,  administrator,  and  to  be  exercised  in 
New  York.i 

In  'Woodward  v.  The  Michigan  Southern  <&  Northet'n  Indi- 
ana Railroad  Co.^^  it  is  distinctly  held  that  such  action  will  not 
lie  in  the  courts  of  one  State  for  an  injury  and  death  occurring  in 
another  State,  although  there  be  like  statutes  giving  the  action  in 
both  States.  The  court  substantially  held  that  the  statute  of  the 
State  where  the  injury  occurred,  and  which  gave  the  action,  only 
gave  it  in  that  State,  and  had  no  force  in  another  State  to  en- 
force it  in  the  courts  thereof;  and  that  the  statute  of  the  State 
where  suit  is  brought  having  had  no  force  where  the  injury  was 
sustained,  therefore  no  right  of  action  accrued  in  virtue  of  it,  and 
under  it  none  could  be  enforced.  In  short,  we  may  sum  up  the 
whole  conclusion  by  adding  that  to  maintain  such  an  action,  the 
law  of  the  right,  the  law  of  the  remedy  and  the  law  of  the  forum 
must  be  identical,  or  the  same,  and  the  territorial  jurisdiction 
that  in  which  the  injury  and  death  occurs. 

Incorporation  by  Two  States.  A  railroad  corporation  organ- 
ized under  the  laws  of  two  different  States  and  operating  its  line 
of  road  as  an  entire  and  continuous  line  in  both  States,  is  liable 
to  suit  as  a  legal  result  of  such  acts  of  incorporation  of  the  two 
States  in  the  courts  of  either  and  each  of  said  States  ;3  and  were 
it  otherwise  a  provision  in  the  incorporating  act  of  that  one  of 
such  States  in  which  the  principal  business  place  is  not  situated, 
that  the  company  shall  keep  an  agent  therein  on  whom  legal 
service  may  be  made,  and  shall  be  held  to  answer  in  the  juris- 
diction where  service  is  made  and  process  is  returnable,  subjects 
the  company  to  such  liability  to  suit  in  the  last  named  State. 

'  Richardson  v.  New  York  Cent.  R.  '  Richardson  v.  Vermont  &  Mass. 
E.  Co.,  98  Mass.  93.  R.  R.  Co.,  44  Vt.  613. 

2 10  Ohio,  131. 


164  PENAL    AND    STATUTORY    ACTIONS. 

Such  corporation  being  equally  the  emanation  of  two  States,  if 
not  liable  to  suit  in  each  would  not,  upon  the  same  principle, 
be  liable  to  suit  in  either,  for  the  objection  is  equally  tenable  as 
to  both.     Therefore,  no  such  objection  is  of  any  legal  validity,  i 

IV.    Statutory  Remedy  by  Indictment  fob  Death  of  a  Person. 

Bemedy  by  Indictment.  In  Maine  and  Massachusetts  the 
remedy  given  by  tlie  statute  for  wrongfully  causing  the  death  of 
another  is  by  indictment.*  In  the  former  State  the  death  must 
be  instantaneous  to  sustain  the  proceeding  by  indictment, ^  In 
Massachusetts,  however,  an  indictment  lies  whether  the  death  is 
immediate  or  some  time  after.*  The  object  of  these  statutes  is 
held  to  be  as  well  to  punish  the  derelict  party  as  to  compensate 
the  kindred  of  the  deceased,  designated  in  the  statute  as  the 
beneficiaries  of  the  recovery.' 

In  case  of  conviction  the  penalty  or  recovery  given  by  law  is 
not  less  than  five  hundred  nor  over  five  thousand  dollars,  at  the 
discretion  of  the  jury  or  court,  as  the  case  may  be,  and  judgment 
for  the  amount  goes  in  favor  of  the  persons  entitled  under  the 
law  to  the  benefit  of  the  recovery,  and  to  enable  it  to  be  so  ren- 
dered it  is  necessary  that  their  existence  be  averred  and  their 
names  be  set  out  in  the  petition  or  declaration,  of  which  the 
truth  must  be  found  to  be  such  by  the  jury.  If  none  such  be  set 
out,  then  there  can  be  no  recovery.  In  no  event  is  there  any 
judgment  in  favor  of  the  State,  although  the  proceeding  is  in  its 
name.^  On  the  trial  the  rules  of  law  as  in  civil  proceedings 
govern.'  In  regard  to  inter-State  jurisdiction  of  such  cases, 
arising  where  the  remedy  given  by  the  statute  is  by  indictment, 
it  is  scarcely  necessary  to  remark  that  no  indictment  would  lie 
in  a  State  other  than  the  one  wherein  this  remedy  is  given  by  the 
statute,  and  wherein  the  injury  and  death  occur.  In  other  words, 
a  Kew  York  or  Connecticut  grand  jury  could  not  indict  under 

'  Richardson  v.  Vermont  &  Mass.  *  Ibid. 

R.  R.  Co.,  44  Vt.  613.  »  State   v.    Grand   Trunk    Ry.,   60 

»  Commonwealth    v.    Metropolitan  Me.  145 ;  Commonwealth  v.  Howard, 

R.   R.   Co.,  107  Mass.  236 ;    State   r.  13  Mass.  231 ;  Commonwealth  v.  East- 

Maine  Cent.  R.  R.  Co.,  60  Me.  490,  em  R.  R.  Co.,  5  Gray,  473. 

492.  •>  State  v.  Grand  Trunk  Ry.,  58  Me. 

» Ibid.  176. 

*  Ibid. 


b 


STATUTORY    ACTION    FOR    PENALTY    FOR    USURY.    165 

the  Maine  or  Massachusetts  statute  for  injuries  and  death  occur- 
ring in  Maine  or  in  Massachusetts.  The  courts  of  I^ew  York 
and  of  Connecticut  would  have  no  jurisdiction  to  carry  on  such 
a  proceeding,  although  the  States  of  New  York  and  Connecticut 
might  have  "  similar  "  statutes  of  their  own,  but  which,  however, 
is  not  the  case. 

The  bringing  of  some  of  these  prosecutions  is  limited  to  one 
year  by  the  statute  where  given,  i  Now  if  an  effort  be  made  in 
a  different  State  to  enforce  them  where  the  limitation  is  different, 
which  rule  of  law  is  to  govern?  If  the  general  principle  of  law 
is  applied  that  the  statute  of  limitations  goes  to  the  remedy,  and 
that,  therefore,  in.  that  respect  the  law  of  the  forum  will  be 
applied,  then  the  prosecution  may  be  restricted  to  a  less  time  or 
enlarged  to  a  greater  time  thereby  than  contemplated  by  the 
statute  giving  the  right  and  limiting  the  time  of  the  remedy; 
and  yet  as  the  same  statute  that  gives  the  right  also  fixes  the 
limitation,  it  would  seem  that  the  party  claiming  the  benefit 
thereof  should  take  it  cum  onere,  that  is  with  all  its  burdens, 
take  it  as  limited.  Under  any  view  of  such  cases,  being  of  a 
police  and  administrative  character  as  they  undoubtedly  are,  it 
would  seem  that  no  remedy  can  be  had  in  the  courts  of  any  State 
other  than  the  State  giving  the  right  of  action  or  providing  for 
the  prosecution  by  its  statutes. 

Y.     Statutory  Action  for  Penalty  for  Usury. 

An  action  will  not  lie  in  the  courts  of  one  State,  for  recovery 
of  a  penalty  given  by  tlie  la^\^  of  another  State,  upon  usurious 
contracts  made  and  entered  into  in  such  other  State,  nor  can 
judgment  be  given  for  the  penalty  in  a  proceeding  to  enforce  in 
such  other  State  tlie  legitimate  portion  of  the  contract.  Tl^e 
most  the  court  will  do  in  such  case  is  to  purge  the  case  of  the 
usurious  part  of  the  contract  by  declining  to  enforce  the  usury; 
it  will  not  go  further,  and  by  an  afiirmative  proceeding  enforce 
tlie  penalty  given  for  usury  by  the  law  of  the  place  of  the  con- 
tract. In  the  case  of  Barnes  v.  Whitalcer^  in  the  Supreme  Court 
of  the  State  of  Illinois,  upon  a  note  made  in  the  State  of  Iowa, 
and  not  only  usurious  by  the  laws  of  Iowa,  but  subjecting  the 
parties,  by  the  Iowa  laws,  to  a  penalty  for  the  usury,  Caton,  J., 

»  State  V,  Grand  Trunk  Ry.,  58  Me.  176. 


166  TENAL    AND    STATUTORY    ACTIONS. 

says:  "With  the  penalties  imposed  by  the  law  upon  the  usurers 
for  their  violating  of  it  we  have  nothing  to  do.  That  is  a  matter 
between  the  State  of  Iowa  and  her  citizens.  We  cannot  punish 
her  citizens  for  violating  the  laws  to  which  they  owe  allegiance."^ 
We  have  treated  fully  of  this  title  in  connection  with  the  sub- 
ject of  "  Interest,"  to  which  the  reader  is  referred.  As  a  general 
conclusion,  it  may  be  stated  that  usury  laws  are,  in  their  nature, 
penal,  and  as  such  are  governed  by  the  general  rule  that  they 
have  no  extra  territorial  force  and  depend  for  their  enforcement 
upon  the  forum  of  their  creation.  The  courts  of  our  States  do 
not  consider  themselves  the  hired  administrative  and  police 
agents  of  other  States,  and  do  not  feel  called  upon  to  enforce 
their  penal  laws.  They  will  enforce  only  the  usury  laws  of  their 
own  State.' 

>  22  111.  606,  609.  « Ante,  Chap.  VIII.  §  16. 


EXTRA    TERRITORIAL    FORCE    OF    LAWS.  167 


CHAPTER  XYI. 

EXTEA   TERRITORIAL   FORCE   OF   LAWS. 

I.    The  State  Laws  Have  ko  Extra  Territorial  Force. 
IL    What  Acts  Done  Under  Them  Abroad  are  Binding  at  Home. 

I.     The  State  Laws  Have  no  Extra  Territorial  Forge  in 

Themselves. 

It  is  a  principle  universally  recognized  that  laws  have  no  extra 
territorial  force.  Their  authority  is  limited  to  the  territorial 
jurisdiction  of  the  State  or  country  that  enacts  them,  so  far  as 
their  right  or  power  of  enforcement  or  claim  to  obedience  is 
concerned.  1 

Natural  or  Universal  Law.  It  is  true,  that  there  are  certain 
principles  of  the  law  that  by  natural  authority  are  common  alike 
to  all  civilized  countries,  whether  simply  remaining  so  by  the 
law  of  nature,  or  re-enacted  or  declared  by  statute,  and  in  either 
case  are  but  parcel  of  that  same  universal  law;  but  these  uni- 
versal laws  are  no  exception  to  the  rule  above  stated,  as  to  extra 
territorial  force,  for  they,  too,  f>x%  confined  to  their  own  territo- 
rial limits.  That  is,  the  territorial  limits  of  civilization,  and  as 
such  become  a  part  of  the  local  law  of  all  civilized  States. 

Comity  of  States.  Whenever  the  municipal  laws  proper  of 
one  State  are  recognized  and  enforced  in  another,  it  is  merely  by 
comity  of  the  latter,  and  upon  the  presumption  that  they  are 
tacitly  adopted  as  to  matters  of  right,  when  not  inimical  to  its 

J  Story's  Conf.  of  Laws,  §§  29,38,  Ketchum,  11   How.  165;    Boswell  v. 

278 ;  Blanchard  n.  Kussell,  13  Mass.  Otis,  9  How.  336 ;  Cooper  c.  Reynolds, 

1 ;  Pennoyer  v.  Neff,  5  Otto,  714 ;  Fos-  10  Wall.  308 ;  Thompson  v.  Whitman, 

ter  V.  Glazener,  27  Ala.  396;   Cleve-  18  Wall.   457;    1    Burges'    Colonial 

land,  Painsville  &  Ashtabula  R.  R.  Laws,  5 ;  Westlake  on  Private  Inter- 

Co.  v.  Pennsylvania,  15  Wall.  300;  S.  national  law,  *132-*137. 
C,  4  Am.  R.  W.  R.  368;   D'Arcy  t>. 


1G8  EXTRA    TERllITORIAL    FORCE    OF    LAWS. 

own  laws  or  policy,  or  interests  of  its  people.^  But  this  comity 
is  never  extended  to  tlie  laws  of  remedy,  but  has  been  generally 
rei^arded  as  extending  to  matters  ex  contractu,^  or  such  torts  as 
are  in  violation  of  natural  right  regarded  as  such  among  civilized 
people.  Katural  right  being  that  which  has  the  same  force 
among  all  men.' 

In  the  case  of  Foster  v.  Glazener  the  supreme  court  of  Ala- 
bama in  denying  extra  territorial  force  to  the  laws  of  a  State, 
say:  "It  is  a  well  settled  principle  of  international  law,  that 
every  attempt  on  the  part  of  one  nation  or  State  by  its  legisla- 
tion to  grant  jurisdiction  to  its  courts  over  persons  or  property 
not  within  its  territory,  is  regarded  elsewhere  as  mere  usurpa- 
tion; and  all  judicial  proceedings  in  virtue  of  it  are  held  utterly 
void  for  every  purpose."*  This  principle  is  briefly  illustrated 
in  the  ancient  maxim,  that  "beyond  his  territorial  boundaries  it 
is  not  safe  to  obey  a  party  commanding." 

Thus  it  has  been  repeatedly  ruled,  that  the  courts  do  not  take 
notice  of  the  statutes  of  other  States.  To  be  respected  there, 
they  must  be  produced  and  proven."^  If  this  be  not  done,  then 
the  court  will  presume  the  law  of  the  other  State  to  be  the  same 
as  the  law  of  the  former.^  But  it  does  not  follow  that  when  pro- 
duced and  proven  they  will  be  certainly  enforced;  that  depends 
on  circumstances. 

The  Remedy.  The  law  of  the  remedy  of  one  State  will  not  be 
enforced  in  another;  nor  will  such  other  foreign  law  be  enforced 
as  may  be  rej)ugnant  to  the  policy  or  law  of  the  State  wherein 
the  attempt  is  made  to  enforce  them.' 

Execution  on  a  judgment  rendered  in  Indiana  upon  a  note 
executed  in  another  State  is  to  be  had  according  to  the  law  of  the 
State  of  Indiana  as  existing  at  date  of  the  Indiana  judgment. 
The  law  of  Indiana  at  date  of  the  note  not  being  in  force  where 
the  note  was  made  does  not  enter  into  the  contract.  It  is  first 
connected  therewith  when  the  contract  is  merged  in  judgment. ^ 

'  Story's  Conf.  of  Laws.  §  88 ;  Bank  » 7  Co.  12. 

of  Augusta  V.  Earle,   13    Pet.  519;  *  27  Ala.  396. 

Greenwood  v.  Curtis,  6  Mass.  358;  » Doe  i-.  Collins,  1  Ind.  24,  26. 

Pearsall  v.  Dwight,  2  Mass.  84;  Gard-  « Ibid. 

ner'3  Institutes,  173-175 ;  Wheaton's  '  Ibid. ;  Story's  Conf.  of  Laws,  §  6, 
International  Law.  §§  79,  80.                    et  seg. 

'■'  Blanchard  v.  Russell,  13  Mass.  1 ;  *  Ibid. 
Story's  Conf.  of  Laws,  §§  278, 5oQ,et  acq. 


i 


MAY    AUTHORIZE    ACTS    BINDING    AT    HOME.  169 

II.     What  Acts  Done  Undek  Them  Abroad  ake  Binding  at 

Home. 

Although  it  is  true,  as  a  general  principle,  that  the  laws  of  a 
State  can  have  no  force  outside  of  its  territorial  limits,  yet  this 
rule  is  not  a  universal  one.  For,  thongh  they  have  no  force  there, 
as  a  rule  of  action  and  local  enforcement  upon  the  citizens,  prop- 
erty, or  interests  of  such  other  country,  yet  they  may  authorize 
a  State's  own  citizens  tliere  temporarily  being,  to  do  acts  which, 
when  evidenced  and  returned  as  by  such  law  provided  in  its  own 
territorial  limits  and  local  forums^  shall  be  there  binding  as  if 
done  at  such  local  forum  or  home.^  Such,  for  instance,  as  allow- 
ing by  law  the  citizens  of  a  State  who  are  absent  in  government 
service  in  time  of  war  to  vote  where  for  the  time  being  they  may 
be,  in  State  and  local  elections  occurring  in  virtue  of  law,  at  the 
places  of  their  residence. 

So,  too,  authority  to  do  personal  acts  not  pertaining  to  such 
foreign  State  or  country,  in  such  country,  for  and  in  reference  to 
the  State  authorizing  the  same,  and  for  and  in  behalf  of  its  cit- 
izens, as,  for  instance,  the  taking  and  certifying  of  depositions  of 
witnesses  to  be  used  as  evidence  in  its  own  courts,  may  be  con- 
ferred by  law  not  only  upon  its  own  citizens  abroad  but  npon 
citizens  and  officers  of  other  States  or  foreign  countries,  and  the 
same  will  be  of  equal  obligation  and  validity,  if  so  provided  by 
law,  when  returned  in  the  courts  of  the  State  authorizing  the 
same,  as  they  would  be  if  taken  in  such  State. ^  So,  also,  of  all 
manner  of  agencies  and  official  authority  of  a  State,  authorized 
by  it  to  be  exercised  abroad,  as  agencies  of  a  fiscal  character,  and 
as  official  power  conferred  upon  persons  in  any  other  State  and 
citizens  thereof,  or  upon  a  State's  own  citizens  residing  there,  to 
take  and  certify  the  acknowledgment  of  deeds  and  other  instru- 
ments to  be  used  as  evidence  of  right  and  of  title  within  the 
State  so  authorizing  the  same,  and  of  the  validity  thereof  when 
duly  taken  and  certified  in  conformity  to  the  law  providing  there- 
for, there  never  has  been  any  doubt.  ^  Not  to  make  a  parallel 
between  cases  arising  in  the  several  States  of  the  American 
Union,  and  those  occurring  in  governments  clothed  with  all  the 

1  State  'V.  Main,  16  Wis.  398,  422;         ^  State  v.  Main,  16  Wis.  398,  422. 
Stor>  's  Conf.  of  Laws,  §  23.  » Ibid. 


170  EXTRA    TERRITORIAL    FORCE    OF    LAWS. 

attributes  of  sovereignties,  occurrences  of  the  kind  which  are 
here  the  subject  of  discussion,  are  transpiring  all  the  time  under 
authority  of  different  countries  within  the  compass  of  their 
foreign  diplomacy  and  consulate  authority,  the  latter  of  which 
extends  judicially  in  many  cases  to  the  trial  of  controversies  be- 
tween the  fellow  citizens  or  fellow  subjects  of  such  consul  which 
arise  within  his  consulate,  and  such  trials  take  place,  of  course, 
within  the  jurisdictional  or  territorial  limits  of  a  foreign  State, 
but  they  in  no  wise  infringe  the  sovereignty  of  the  country,  and 
are  binding  only  upon  the  parties  thereto.  A  prominent  example 
of  this  exercise  of  power  in  a  foreign  State,  to  be  of  validity  and 
force  only  at  home,  is  seen  in  the  administering  of  the  oath  of 
office  in  Cuba  to  Mr.  King,  as  Yice  President  of  the  United 
States,  by  a  committee  of  Congress  thereto  authorized  by  a  law 
of  Congress  for  that  purpose  enacted,  he  being  there  sick  and 
unable  to  return.  But  all  such  laws  authorizing  acts  to  be  done 
in  other  States,  are  to  be  regarded  more  in  the  light  of  powers 
conferred  than  as  embodying  authority  of  a  compulsory  nature 
capable  of  there  being  enforced.  Yet,  in  the  forum  of  the  place 
of  their  enactment  they  impart  complete  validity  to  such  author- 
ized foreign  acts  with  all  the  force  of  law. 


STATUTE    OF    LIMITATIOjS'S.  171 


CHAPTER    XYII. 

STATUTE   OF   LIMITATIONS. 

I.    The  Plea  op  Limitations  goes  to  the  Remedy  Afforded  by  the 

Law  of  the  Forum. 
II.    State  Power  to  Limit  Actions  on  Judoments  op  other  States. 

III.  Statutes  op  Limitations  do  not  Apply  to  Suits  by  State  or  Na- 

tional Governments. 

IV.  Statutes  Limiting  Suits  on  Judgments  of  other  States  Operate 

Prospectively. 
V.    In  some  States  a  Previous  Bar  in  Another  is  a  Good  Plea. 
VI.    Ability  op  a  Corporation  op  Another  State  to  Plead  the  Statute. 

I.     The  Plea  of  Limitation  goes  to  the  Remedy  Afforded  by 
THE  Law  of  the  Forum. 

State  Courts.  Pleas  of  the  statute  of  limitations  go  to  the 
remedy,  not  to  the  vital  force  of  the  obligation  or  cause  of  action, 
but  to  the  practical  right  of  enforcing  it.  They  are,  therefore, 
governed  by  the  law  of  the  forum  or  place  of  suit.  Hence  the 
several  States  may  enact  such  reasonable  statutes  of  limitation  as 
they  think  proper,  and  such  statutes  will  operate  alike  against 
the  right  of  bringing  suit  or  actions  on  records,  judgments  and 
decrees  of  the  courts  of  other  States,  and  on  other  contracts  or 
liabilities  arising  in  such  other  States,  as  upon  the  same  descrip- 
tion of  obligations  and  liabilities  respectively  in  the  State  where 
enacted.  Therefore,  the  defense  of  the  statute  of  limitations  set 
up  in  the  courts  of  a  State  to  an  action  therein  on  a  judgment 
of  the  court  of  a  dijSferent  State,  is  a  good  defense  when  true.  ^ 

The  Same  Rule  in  the  United  States  Courts.  So,  likewise,  as 
a  defense  to  an  action  in  the  circuit  court  of  the  United  States 


'  McElmoyle  ».  Cohen,  13  Pet  312 
Bank  of  Alabama  v.  Dal  ton,  9  How 
522 ;  Miller  «.  Brenham,  68  N.  Y. 
Scudder  v.  Union  Nat.  Bank,  1  Otto 
406 ;  Lincoln  «.  Battelle,  6  Wend.  475 


Ruggles  V.  Keeler,  3  John.  264 ;  Ton-      on  Limitations,  8. 


landon  t.  Lachenmeyer,  37  How.  Pr, 
145;  Power  v.  Hathaway,  43  Barb, 
214 ;  Nash  ».  Tupper,  1  Caines,  402 
Townsend  v.  Jennison,  9  How.  407 
Angell  on  Limitations,  §  65 ;  Banning 


172  STATUTE    OF    LIMITATIONS. 

or  other  United  States  court  sitting  within  a  State,  a  plea  of  the 
State  statute  of  limitations  is  a  good  plea,  if  truly  and  well 
pleaded.  The  "laws  of  the  several  States,  except  where  the 
Constitution,  treaties,  or  statutes  of  the  United  States  shall 
otherwise  require  or  provide,  shall  be  regarded  as  rules  of  deci- 
sion in  trials  at  common  law  in  the  courts  of  the  United  States 
in  cases  where  they  apply." ^  Thus  the  statutes  of  limitations 
of  the  several  States,  if  no  special  provision  is  made  in  that 
respect  by  Congress,  for  a  rule  of  decision  in  the  courts  of  the 
United  States  have  the  same  effect  as  they  have  in  the  State 
courts.2  Such  statutes  are  laws  of  the  forum^  and  operate  alike 
upon  all  within  the  jurisdiction  thereof.' 

Action  on  Judgments  of  other  States.  It  is  well  settled,  there- 
fore, that  to  an  action  on  a  judgment  of  anf>ther  State,  the  statute 
of  limitations  of  the  State  where  the  suit  is  brought  is  a  good 
defense  if  pleaded,  and  the  same  has  actually  run  the  length  of 
time  requisite  to  bar  the  action,  and  the  circumstances  as  to 
residence  of  the  defendant  in  connection  therewith,  or  other 
requirements  of  the  local  law,  are  such  as  to  bring  the  case 
within  the  bar  of  the  statute.*  The  statute  of  limitations  goes 
to  the  remedy.  It  is,  therefore,  a  part  of  the  procedure  neces- 
sarily only  of  value  while  enforcing  the  cause  of  action.  Each 
State  provides  its  own  remedies  and  will  not  enforce  the  remedies 
of  any  other.  The  lex  loci  fori  is  the  guide  of  the  court  in 
their  procedure.  Foreign  contracts,  like  foreign  judgments, 
must  yield  obedience  to  the  laws  of  the  Jorum  in  seeking  and 
obtaining  remedies.'^ 

So,  where  a  debt  was  contracted  between  two  citizens  of  the 
same  State  and  the  debtor  afterward  removed  to  Minnesota  and 


•  Judiciary  Act  of  1789,  §  34.  v.  Cohen,  13  Pet.  312 ;  Carson  c.  Hun- 

«McCluny  c  Silliman,  3  Pet.  270,  ter,  46  Mo.  467;  Baker  «.  Brown,  18 

27G,  278;    McElmoyle  t.  Cohen,   13  111.  91 ;  Van  Alstine  t;.  Lemons,  19  111. 

Pet.  312;    Flowers   t.  Foreman,    23  394;  Allison  c.  Nash,  16  Tex.  560.   See 

How.  132;   Lefflngwell  n.  Warren,  2  Richards  v.  Pol,2:reen,  13  S.  »fc  R.  393; 

Black.  599.  Angell  on  Limitations,  ^§  84,  85. 

3  McCluny  t.  Silliman,  3  Pet.  270,  »  Harrison  t.  Edwards.  12  Vt.  648; 

276, 277 ;  Flowers  B.  Foreman,  23  How.  Le  Roy  u.  Crowinshield,  2  Mas.  151; 

132.  McElmoyle  t.   Cohen,  13  Pet.   312; 

•»  Sohn  n.  Waterson,  1  Dill.  358 ;  Jac-  Bank  of  U.  S.  v.  Donnally,  8  Pet.  361 ; 

quette  t.  Hugunon,  2  McL.  129 ;  Pease  Ruggles  v.  Keeler,  3  John.  261 ;  Jones 

«.  Howard,  14  John.  470;  McElmoyle  'c.  Jones,  18  Ala.  248. 


JUDGMENTS  OF  OTHER  STATES.  173 

there  resided  the  length  of  time  required  bj  statute  to  bar  an 
action,  the  statute  of  limitations  of  Minnesota  was  held  a  good 
defense  to  an  action  in  that  State  on  such  debt.^  So  likewise  as 
to  right  of  property.  2 

II.     State  Power  to  Limpi  Actions  on  Judgments  of  other 

States. 

The  limitation  of  the  statute  to  suits  on  judgments  of  another 
State,  must  be  in  reference  to  the  date  of  the  judgment  sued  on 
and  not  the  date  of  the  cause  of  action  on  which  it  was  rendered. 
The  Legislature  of  the  State  of  Mississippi  enacted  a  statute  of 
limitations  in  words  as  follows:  "  No  action  shall  be  maintained 
on  any  judgment  or  decree  rendered  by  any  court  without  this 
State  against  any  person  who,  at  the  time  of  the  commencement 
of  the  action  in  which  judgment  or  decree  was  or  shall  be  ren- 
dered, was  or  shall  be  a  resident  of  this  State,  in  any  case  where 
the  cause  of  such  action  would  have  been  barred  by  any  act  of 
limitation  of  this  State,  if  such  suit  had  been  brought  therein." 
In  an  action  in  said  State,  on  a  judgment  rendered  in  the  State 
of  Kansas,  a  plea  of  this  statute  was  interposed  by  the  defendant 
and  of  the  facts  requisite  to  bring  the  defense  within  its  terms 
as  a  supposed  statute  of  limitations.  The  case  was  taken  to  the 
United  States  Supreme  Court,  which  tribunal  held  the  statute  to 
be  in  violation  of  that  clause  of  the  United  States  Constitution 
which  provides  that  "  full  faith  and  credit  shall  be  given  in  each 
State  to  the  public  acts,  records  and  judicial  proceedings  of  every 
other  State;  and  that  Congress  may,  by  general  laws,  prescribe 
the  manner  in  which  such  records  shall  be  proved,  and  the  effect 
thereof."  Under  this  clause  of  the  United  States  Constitution  it 
is  held  that  such  judgments  have  the  same  effect  in  another  State 
when  sued  on  as  in  the  State  where  rendered,  arid  that  although 
a  State  may  pass  statutes  of  limitations  reasonably  prescribing  a 
limit  of  time  in  which  remedies  by  suit  are  available,  and  although 
such  statutes  apply  as  the  law  of  the  remedy  and  the  yoriwif 
when  reasonable,  in  suits  on  judgments  of  another  State,  yet  that 
statutes  amounting  as  this  one  does  to  a  total  denial  of  remedy, 
are  void.' 

'  Fletcher  v.  Spaulding,  9  Mian.  64         ^  Christmas  v.  Russell,  5  Wall.  290. 
*  Waters  v.  Barton,  1  Cold.  450.  See  supra,  Actions  on  Foreign  Judg- 


174  STATUTE    OF    LIMITATIONS. 


III.  Statutes  of  Limitation  do  not  Apply  to  Suns  bt  State 

0^  National  Governments. 

Statutes  of  limitation  of  a  State  do  not  apply  to  the  State  it- 
self, unless  so  expressed  to  be  intended,  or  it  clearlj  so  appears  to 
have  been  intended  by  the  particular  subject  matter  of  limita- 
tion. *  Nor  do  they  apply  to  the  United  States, 2  for  the  legisla- 
tion of  a  State  can  only  apply  to  persons  and  things  over  which 
the  State  has  jurisdiction. 

IV.  Statutes  Limiting  Suits  on  Judgments  of  othee  States 

Operate  Prospectively. 

Statutes  of  a  State  limiting  the  time  within  which  actions  in 
her  courts  may  be  brought  upon  judgments  of  the  courts  of  other 
States  do  not  apply  in  their  operation  to  judgments  rendered  be- 
fore such  statutes  were  enacted,  unless  they  so  express. ^  And  in 
calculating  the  time  of  limitation  when  applicable,  it  is  to  be 
reckoned  in  reference  to  the  time  of  commencement  of  suit  upon 
the  judgment,  and  not  in  reference  to  the  time  of  trial.* 

V.  In  some  States  a  Previous  Bar  in  Another  is  a  Good  Plea. 

In  some  of  the  States  a  statutory  provision  exists  in  reference 
to  limitations  of  actions,  that  where,  by  the  statute  of  a  difter- 
ent  State,  wherein  the  defendant  previously  resided,  the  cause  of 
action  sued  on  was  fully  barred,  and  the  contractor  cause  of  action 

ments,  ancU*;i/;-a,  §  4.    The  States  may  Mich.  34.    But  a  State  divests  itself 

prescribe  the  time  within  which  ac-  of  this  privilege  when  it  engages  in 

tions  may  be  brought,  but  as  to  exist-  private  business  with  an  individual 

lug  causes  thej'  must  allow  a  reasona-  or  corporation,  and  thus  assumes  the 
ble  time.    See  Hart  v.  Bostwick,  14    .  characteristics  of  a  private  person. 

Fia.  163;  Davidson  c.  Lawrence,  49  Governor  v.  Woodworth,  63  111.  354. 

Geo.  335 ;  Auld  v.  Butcher,  2  Kan.  «  Gibson  v.  Chouteau,  13  Wall.  93, 

135;  Pereless  v.  Watertown,  6  Biss,  99;  United  States?).  Hoar, 3  Mas. 311; 

79;   Kimbro  v.  Bank  of  Fulton,  49  Peoples.  Gilbert,  18 .John. 338;  Swear- 

Geo.  419.  ingen  v.  U.  S.  11  Gill  &  J.  373. 

'  Gibson  v.  Chouteau,  13  Wall.  93.  *  Murray  v.  Gibson,  15  How.  421; 

99;    Lindsey  v.  Miller,   6  Pet.  660.  Boyd  t;.  Barrenger,33  Mis?.  270;  Gar- 

Nullum  tempus  occurrit  regi.    Angell  rett  v.  Beaumont,  34  iliss.  377. 

on  Limitations,  §34;  Broom's  Legal  •'Murray  v.  Gibson,  15  How.  431; 

Maxims,  ♦OO;  Alton  t.  Illinois  Trans.  Moore  c.  Lobbin,  36  Miss.  304. 
Co.,  13  111.  38;  Crane  v.  Reeder,  31 


ABILITY    TO    PLEAD    THE    STATUTE.  175 

had  not  arisen  in  the  State  where  the  suit  is  pending,  that  then  the 
bar  of  the  action  in  the  other  State  is  a  good  bar  to  the  same  in 
8uch  suit  J 

Where  the  debt  is  not  only  barred,  but  actually  extinguished 
by  the  law  of  the  place  which  governs  the  performance  of  the 
contract,  then  to  a  suit  in  another  State  upon  such  contract  the 
foreign  statute  may  be  successfully  interposed;  for  it  is  here  not 
a  law  governing  only  the  remedy,  but  it  destroys  the  right,  and 
that  being  destroyed,  the  contract  is  no  longer  enforcible  in  any 
forum  if  the  plea  is  interposed ; 2  and  particularly  is  this  so  where 
the  property  is  in  the  possession  of  another,  and  the  remedy  has 
been  cut  off  by  lapse  of  time.^ 

Requisites  of  the  Plea.  To  enable  a  defendant  to  obtain  the 
benefit  of  this  provision,  his  pleading  must  substantially  show 
tliat  the  plaintiff's  entire  right  of  action  had  been  fully  barred 
by  the  statute  of  tlie  other  State  while  defendant  there  resided, 
and  that  the  cause  of  action  did  not  arise  in  the  State  where  the 
suit  is  pending.*  But  when  the  pleadings  and  evidence  for  the 
defense  show,  and  the  fact  is  satisfactorily  established,  that  the 
cause  of  action  has  been  fully  barred  by  the  laws  of  any  country 
where  the  defendant  has  previously  resided,  then  such  bar 
amounts  to  the  same  defense  in  the  court  where  the  suit  is  pend- 
ing as  though  it  had  arisen  under  the  statute  of  the  forum.^ 

VI.    Ability  of  the  Cokpoeation  of  Another  State  to  Plead 

THE  Statute. 

The  ruling  in  New  York  is,  that  a  foreign  corporation,  that  is, 
a  private  corporation  created  in  a  different  State,  cannot  success- 
fully plead  the  statute  of  limitations  of  I^ew  York  in  defense  of 
an  action  against  it  in  the  New  York  courts,  although  such  for- 
eign corporation  be  the  lessee  of  a  railroad  in  New  York,  and  be 
operating  the  same  therein,  and  have  property  and  a  managing 

1  Gillett  t.  Hall,  32  Iowa,  220 ;  Lloyd  11  Wheat.  361 ;  Foote's  Private  Inter- 

».  Perry,  32  Iowa,  144 ;  Sloan  B.Waugh,  national  Law,  420  et  seq. 

18  Iowa,  224;  Petchell  v.  Hopkins,  19  3 1\^\^_ 

Iowa,  531.  4  Gillett  v.  Hall,  32  Iowa,  220. 

«  Lincoln  v.  Battelle,  6  Wend.  475;  «  Lloyd  v.  Perry,  32  Iowa,  144;  Pet- 

Brown  «.  Parker,  28  Wis.  21 ;  Brent  chell  v.  Hopkins,  19  Iowa,  535 ;  Sloau 

».  Chapman,  5  Cr.  358 ;  Shelby  u.  Guy,  «.  Waugh,  18  Iowa,  226;  Webster©. 

Rees,  23  Iowa,  269. 


176  STATUTE   OF   LIMITATIONS. 

agent  residing  and  keeping  an  office  within  the  State  subject  to 
process  of  the  courts.  * 

Of  these  rulings  in  New  York,  the  Supreme  Court  of  the 
United  States,  Beadley,  J.,  say:  "These  decisions  upon  the  con- 
struction of  the  statute  are  binding  upon  us,  whatever  we  may 
think  of  their  soundness,  on  general  principles."'  The  ground 
upon  which  this  ruling  in  the  courts  of  New  York  is  placed  seems 
to  be  that  a  corporation  is  a  resident  of  the  State  where  created, 
and  cannot  emigrate  or  remove  to  another  State,  while  the  New 
York  statute  expressly  excepts  from  the  benefits  of  the  limita- 
tions persons  who  are  "out  of  the  State  when  the  cause  of  action 
shall  accrue,"  and  that  the  time  of  absence  "  shall  not  be  taken 
as  any  part  of  the  time  limited  for  commencement "  of  the  ac- 
tion; and  that  there  is  a  legal  impossibility  for  a  corporation  of 
another  State  to  come  within  the  State  of  New  York. 

Hunt,  Justice,  in  the  case  cited,  says:  "  Statutes  of  limitations 
are  in  their  character  arbitrary.  They  rest  upon  no  other  founda- 
tion than  the  judgment  of  a  State  as  to  what  will  promote  the 
interests  of  its  citizens."^  Justice  Miller,  in  the  same  case,  dis- 
senting, says:  "The  liability  to  suit,  where  process  can  at  all 
times  be  served,  must,  in  the  nature  of  things,  be  the  test  of  the 
meaning  of  the  statute.  A  different  rule  applied  to  an  individual, 
because  he  is  a  citizen  or  resident  of  another  State,  is  a  violation 
at  once  of  equal  justice  and  of  the  rights  conferred  by  the  second 
section  of  the  fourth  Article  of  the  Federal  Constitution,  that 
the  citizens  of  each  State  shall  be  entitled  to  all  the  privileges 
and  immunities  of  citizens  in  the  several  States."* 

In  Illinois  a  different  rule  has  been  asserted  by  the  Appellate 
Court.  The  doctrine  here  laid  down  is,  that  the  statute  runs 
where  there  is  ability  to  obtain  service,  and  that  where  a  foreign 
corporation  does  business  in  the  State  having  an  office  and  agents 
therein,  it  may  plead  the  statute. ^ 

'  Thompson  v.  Tioga  R.  R.  Co.,  30  Corning  R.  R.  Co.,  20  Wall.  137,  149. 
Barb.  79;  Olcutt  v.  Tioga  R.  R.  Co.,  »  20  Wall.  p.  150. 
20  N.  Y.  210;  Rathbun  tj.  Northern  *  Tioga  R.  R  Co.  v.  Blossburg  &> 
Cent.  R.  R.  Co.,  50  X.  Y.  656;  Bur-  Corning  R.  R.  Co.,  20  Wall.  152. 
roughs  ?J.  Bloomer,  5  Denio,  532;  Mc-  *  Pennsylvania  Company  v.  Sloan, 
Cord  V.  Woodhull,  27  How.  Pr.  54;  Chicago  Legal  News,  Vol.  X.,  p.  381. 
Tioga  R  R.  Co.  v.  Blossburg  &  Corn-  And  also  reported  in  1  Bradwell's  Ap- 
ing R.  R.  Co.,  20  Wall.  137,  pel.  Ct.  Rep.  364.    See,  also,  infra, 

» Tioga  R.  R.  Co.  v.  Blossburg  «fc  Chap.  26. 


MAERIAGE   AND    DIVOECE,  177 


CHAPTEK  XVIII. 

MARRIAGE  AND  DIVORCE  —  INTER-STATE  VALIDITY  THEREOF. 

I.  Institution  of  Marriage.    Inter-State  Validity  op  Marriages. 

II.  Divorce.    Jurisdiction  to  Grant  the  Same. 

III.  Inter-State  Validity  op  Divorces. 

IV.  Inter-State  Custody  op  Children.    Enforcement  op  Alimony. 
V.  Inter-State  Effect  op  Former  Adjudication. 

I.     Institution  of  Marriage.     Inter-State  Yalidity  of 
Marriages. 

Nature  of  the  Marriage  Contract.  Marriage  is  a  legal  institu- 
tion provided  for  by  law  for  the  good  of  the  public  and  State, 
and  the  happiness  and  prosperity  of  individuals.  It  is  not  a 
mere  contract,  to  be  entered  into  and  dissolved  at  the  will  of  the 
parties,  but  depends  in  both  respects  upon  the  approbation  and 
concurrence  of  the  government  and  the  law  as  declared  and  ad- 
ministered by  the  officially  authorized  anthorities  thereof. ^ 

The  obligation  of  the  marriage  relation  is  recognized  among 
all  christian  people,  and  a  marriage  valid  and  binding  in  the 
State  or  country  where  celebrated  according  to  the  law  thereof, 
is,  as  a  general  principle,  valid  and  binding  everywhere  else, 
whether  in  the  same  or  in  a  foreign  State  or  country.  Such  is 
the  universal  law,^  subject,  however  to  these  exceptions,  that  it 
be  not  incestuous,  polygamous,  or  repugnant  to  good  morals,  and 
the  ordinary  policy  and  sense  in  which  it  is  regarded  by  civil- 
ized nations.  But  no  State  or  people  are  bound  to  countenance 
or  sustain  in  their  midst,  or  to  protect  by  law,  practices  or  con- 
nections under  the  color  of  marriage  which  are  inimical  to  the 

>  Cabell  «.  Cabell,  1  Met.  (Ky.)  319,  ham,  16  Mass.  157 ;  Stevenson  v.  Gray, 

327,  328;    Roche  v.  "Washington,  19  17  B.  Mon.  193;  1  Bishop  on  Marri. 

Ind.  53.  age  and  Divorce,  §§  355,  370,  and 

2  2   Kent,    *92 ;   Medway  v.  Need-  cases  cited. 
12 


178  MARRIAGE    AND    DIVORCE. 

public  or  private  morals  of  the  people,  or  contrary  to  the  pro- 
visions of  domestic  laws,  however  valid  they  may  have  "been 
where  entered  into  in  countries  authorizing  the  same.^ 

The  ruling  in  most,  if  not  all  of  the  American  States  is,  that  the 
marriage  relation  may  be  dissolved  by  legislative  enactments  in 
some  and  by  judicial  decree  or  judgment  in  other  of  the  States, 
at  the  will  of  the  sovereign  power,  expressed  in  the  constitution 
and  laws,  with  or  without  the  concurring  consent  of  the  parties. 
The  riffht  to  do  so  does  not  come  within  the  inhibition  of  the 
constitution  as  to  the  impairing  the  obligation  of  contracts.  It 
is  rejrarded  as  an  institution  of  State,  and  not  a  mere  contract. 
Contracting  to  marry  does  not  of  itself  create  a  marriage,  but  it 
only  becomes  such  by  the  formal  act  of  the  law.^  Hence  it  is, 
that  the  marriage  capacity  of  persons  is  different,  in  a  legal  point 
of  view,  in  different  States,  for,  being  a  creature  of  the  law,  each 
sovereignty  regulates  it  to  suit  its  own  views  of  the  public  good, 
declaring  who  are  competent  to  enter  into  the  marriage  relation, 
and  the  manner  of  celebrating  the  same,  and  rendering  it  bind- 
ing in  law.  But  subject  always  to  the  one  great  leading  prin- 
ciple of  law,  of  a  general  nature,  that  if  legal  and  valid  in  the 
State  wherein  it  is  entered  into,  the  marriage  is  legal  and  valid 
in  all  others  into  which  the  parties  come,  if  in  its  nature  it  be 
not  opposed  to  the  natural  law,  or  good  morals,  or  to  the  positive 
law  and  policy  of  such  other  States  as  hereinbefore  stated. 

So,  likewise,  if  an  alleged  marriage  be  invalid  in  law  where 
entered  into,  it  is  invalid  everywhere  else,'  not  only  upon  the 
principle  of  general  law  as  to  the  marriage  status,  but  that  in 
fact  an  invalid  one  is  no  marriage  at  all,  either  where  entered 
into  or  elsewhere.  By  invalidity,  however,  is  not  to  be  under- 
derstood  mere  informality  or  irreg^ilarity  as  to  the  method  of 
entering  into  the  same,  but  such  a  state  of  relation  as  the  law  of 
the  place  where  entered  into  does  not  and  will  not  recognize  as 
creating  the  marriage  state  between  the  parties  thereto. 

'State  t>.  Kennedy.  76  N.  C.  251;  Wheat.  518;  2  Kent  *108;  Gaines  r>. 

Kinney  v.  Commonwealth,  6  The  Re-  Gaines,  9  B.  Mon.  295,  308 ;  Maguire 

porter,  733,  (Va.  Sept.  1878.)    But,  see  t.  Maguire,  7  Dana,  181 ;  Berthelemy 

Medway  r.  Needham,  IG  3Ia;s.  157;  «.  Johnson,  3  B.  Mon.  90. 

Putnam  t.  Putnam,  8  Pick,  433 ;  Ste-  » Greenwood  v.  Curtis,  6  Mass,  358 ; 

venson  %.  Gray,  17  B.  Mon.  193.  Bishop  on  Marriage  and  Divorce,  vol. 

5  Cabell  0.  Cabell,  1  Met.  (Ky.)  319;  1,  §  390;  Cheever  t>.  Wilson,  9  Wall. 

Dartmoutli  College  v.  Woodward,  4  108. 


JURISDICTION    TO    GRA^xT    DIYOECE.  17& 


II.      DiVOECE.      JUEISDICTION   TO    GkANT   THE    SaME. 

In  Ecclesiastical  Courts.  In  the  mother  country  jurisdiction 
in  matters  of  divorce  was  vested  exclusively  in  the  ecclesiastical 
courts;  the  courts  of  common  law  had  no  authority  upon  the 
subject.  1 

By  Statute  in  Common  Law  and  Chancery  Courts.  It  fol- 
lowed from  this,  that  there  being  no  ecclesiastical  courts  in  the 
American  colonies,  or  subsequently  in  the  States,  there  was  no 
jurisdiction  whatever  here  to  grant  divorces,  except  as  conferred 
by  statute  upon  the  common  law,  or  chancery  courts,  of  the  coun- 
try. 2  Until  so  conferred  upon  the  judiciary  the  power  was  in 
the  legislative  departments  of  the  local  governments  alone  ;3  but 
when  conferred  upon  the  courts  tliey  took  it,  so  far  as  consistent 
with  the  nature  of  our  institutions,  to  be  exercised  in  accordance 
with  the  rules  and  principles  of  the  ecclesiastical  courts  of  the 
mother  country  in  similar  cases.'* 

Lex  Loci  Contractus.  The  lex  loci  contractus  is  ordinarily 
the  legal  test  of  validity  of  marriage,  legitimacy  and  divorce, 
when  brought  in  question  in  other  States,  but  the  courts  of  such 
other  States  will  not  recognize  or  be  governed  in  their  decisions 
by  such  laws,  if  in  their  nature  they  encourage  immorality,  or 
are  in  violation  of  the  general  moral  tone  or  policy  of  civilized 
States,  or  outrage  the  policy  or  conscience  of  the  community 
thus  called  on  to  enforce  them." 

Residence  in  Cases  of  Divorce.  Kesidence  of  the  applicant,  in 
good  faith,  within  the  State  where  the  application  is  made,  is 
necessary,  to  enable  a  court  to  take  jurisdiction  of  an  application 
for  a  divorce,  and  to  dispose  of  the  same  by  granting  the  appli- 
cant a  divorce,  if  cause  is  found  therefor.^     And  where  the  hus- 

'  Le  Barron  v.  Le  Barron,  35  Vt.  ^  Le  Barron  v.  Le  Barron,  35  Vt. 

365 ;  Brinkley  v.  Brinkley,  50  N.  Y.  365 ;  Brinkley  v.  Brinkley,  50  N.  Y. 

184,  190;  Burtis  v.  Burtis,  Hopk.  Ch.  184,  190;  Griffin  v.  Griffin,  47  N.  Y. 

557.  134. 

■^  Le  Barron  v.  Le  Barron,  35  Vt.  ^  Eubanks  v.  Banks,  34  Geo.  407. 

365;  Brinkley  v.  Brinkley,  50  N.  Y.  «  Wriijht  v.  Wright.  24  Micli.  180; 

184,  190.  Manley  v.  Manley,  3  Finn.  390 ;  Shafer 

^Le  Barron  v.  Le  Barron,  35  Vt.  ■».  Bushnell,  24  Wis.  372;  Hubbell  b. 

365;    Starr  v.    Pease,  8  Conn.  541;  Hubbell,  3  Wis.662;  Gleason «.  Glea- 

Cooley's  Const.  Lim.  *110  et  seq.  son,  4  Wis.  64;  Hanover  v.  Turner,  14 


180  MARRIAGE    AND    DIVORCE. 

band  is  a  resident  of  one  State,  and  the  wife  is  resident  in  an- 
other, the  courts  of  each  State  have  jurisdiction  to  grant  a  divorce, 
at  the  instance  of  the  party  so  residing  therein;  and  if  a  divorce 
be  granted  in  one  of  tliese  States  to  the  party  so  residing  therein 
by  proceedings  in  rem,  that  does  not  prechide  the  courts  of  the 
other  State  from  granting  a  divorce  to  the  party  residing  in  suck 
other  State;  and  the  rule  is  the  same,  whether  the  decree  was 
regularly  or  irregularly  obtained  in  the  case  of  the  one  first  ob- 
taining it.^  In  such  cases  the  courts  of  both  States  have  power 
to  dissolve  the  marriage  relations  of  the  parties,  so  far  as  regards 
the  parties  residing  in  their  respective  territorial  limits,  and  upon 
such  terms  in  respect  to  such  resident  party  as  are  permitted  by 
the  laws  thereof;  and  this,  too,  notwithstanding  the  fact  that  a 
divorce  has  been  decreed  to  the  other  party,  and  upon  different 
terms,  in  the  State  where  such  other  party  resides,  or  resided  at 
the  time  thereof. ^  This  power  of  the  courts,  where  the  appli- 
cant resides,  is  not  dependent  upon  the  residence  of  the  defend- 
ant in  the  same  State  or  jurisdiction,  but  exists  though  the 
defendant  never  resided  in  the  State.  The  court  acts  upon  the 
contract,  and  dissolves  that,  so  far  at  least  as  regards  the  party 
making  the  application,  over  whom  and  the  contract,  as  personal 
to  such  party,  the  court  has  actual  jurisdiction;  nor  is  it  neces- 
sary, under  the  Wisconsin  statute,  that  the  cause  relied  upon  for 
divorce  shall  have  accrued  within  that  State.* 

Void  Decree  of  Divorce.    But  a  decree  of  divorce  in  a  court  of 
a  State  in  whiclr  neither  party  is  domiciled,  and  in  a  suit  in 

Mass.  237;  Chase  v.  Chase,  6  Gray,  also.  State  t>.  Armington,  17  Alb.  Law 
157 ;  Vischer  v.  Vischer,  12  Barb.  640;  Jour.  451 ;  Cooley  Const.  Lim.  400. 
McQitfert  v.  McGiffert,  31  Barb.  69;  'Wright  t>.  Wright,  24  Mich.  180; 
Wilcox  V.  Wilcox,  10  Ind.  436 ;  DiU  Manley  «.  Manley,  3  Finn.  390. 
son  V.  Ditson,  4  R.  I.  87.  This  case  «  Wright  v.  Wright,  24  Mich.  180; 
is  a  leading  one  on  this  subject.  The  Holmes  t>.  Holmes,  4  Lans.  388 ;  Batch- 
point  is  very  exhaustively  discussed,  eldor  e.  Batcheldor,  14  N.  H.  880; 
and  the  conclusion  arrived  at  is,  that  Ditson  v.  Ditson,  4  R.  I.  87 ;  Forrest 
the  jurisdiction  of  a  court  in  divorce  v.  Forrest,  6  Duer,  102;  Bishop  «. 
depends  not  upon  the  place  of  the  Bishop,  30  Penn.  St.  412;  Hanberry 
marriage,  or  of  the  breach  of  its  du-  «.  Hanberry,  29  Ala.  719 ;  Kruse  v. 
ties ;  but  mariage,  being  a  relation  in-  Ivruse,  25  Mo.  68 ;  Kashaw  v.  Kashaw, 
volving  the  datus  of  a  party  to  it,  can  3  Cal.  312. 

be  dissolved  by  the  court  having  ju-  '  Gleason  v.  Gleason,  4  Wis.  64; 
risdiction  of  the  petitioning  party  Manley  t).  Manley,  3  Finn.  390 ;  Hub- 
alone,  as  a  citizen  of  the  State.    See,  bell  v.  Hubbell,  3  Wis.  662. 


INTER-STATE    VALIDITY    OF    DIVORCE.  181 

•which  there  was  no  service  on  the  defendant,  is  simj^lj  void  for 
want  of  jurisdiction.! 

Rule  of  Wife's  Domicile  when  Living  Separate  from  her  Hus- 
band. The  rule  that  the  domicile  of  the  wife  is  construed  to  be  the 
same  as  that  of  her  husband  is  not  recoo^nized  in  divorce  cases  as 
law,  when  the  parties,  for  cause,  are  living  separate  and  in  different 
States. 2  In  such  case,  it  has  been  held  that  a  wife  residing  in  a 
difterent  State  than  that  in  which  is  the  residence  of  the  husband, 
cannot  sustain  a  proceeding  for  divorce  in  the  courts  of  the  State 
wherein  the  husband  resides.^  But,  so  far  as  relates  to  capacity, 
dependant  upon  residence,  in  proceedings  for  divorce,  a  wife  may 
acquire  a  different  residence  and  domicile  than  that  of  her  hus- 
band, and  may  there  maintain  proceedings  for  divorce.* 

III.     Inter-State  Validity  of  Divorce. 

Valid  where  Rendered,  Valid  Elsewhere.  A  decree  of  divorce, 
valid  and  efiectual,  according  to  the  laws  of  the  State  in  whose 
courts  it  is  rendered,  if  jurisdiction  attached,  is  valid  and  effectual 
in  every  other  State  where  it  comes  in  question,  properly  evi- 
denced under  the  laws  and  Constitution  of  the  United  States. 
It  is  then  entitled  to  the  same  effect  and  has  the  same  force  which 
pertains  to  it  in  the  State  where  it  is  rendered.  ^ 

Divorce  without  Residence  of  either  Party  is  Void.  A  decree 
of  divorce  by  the  court  of  a  State  wherein  neither  of  the  parties 
to  the  decree  permanently  resided  at  the  time  of  making  the 
same,  or  resided  at  the  inception  of  the  cause  for  which  there  is 
a  commencement  of  proceedings,  is  absolutely  void  for  want  of 
jurisdiction,  notwithstanding  it  be  stated  in  the  record  that  the 

1  Hoffman  v.  Hoffman,  46  N.  Y.  30;  418;  Clieever  v.  Wilson,  9.  Wall.  108; 
Elder  «.  Reel,  63  Penn.  St.  308;  Peo-  Hanberry  «.  Haubeny,  29  Ala.  719; 
pie  V.  Darrell,  25  Mich.  247.  Tolen  v.  Tolen,  2  Blackf.  407. 

2  Dutcher  v.  Dutcher,  39  Wis.  651;  ^  Butcher  v.  Butcher,  39  Wis.  651; 
Ditson  V.  Ditson,  4  R.  I.  87;  Harteau  This  was  owing  to  the  statute  of  Wis- 
<B.  Harteau,  14  Pick.  181,  Harding  v.  consin,  which  provides  that  the  plain- 
Aiden,  9  Greenl.  140;  Hopkins  v.  tiff  in  a  divorce  suit  must  have  his 
Hopkins,  35   N.  H.  474;  Payson  v.  domicile  there. 

Payson,  34  N.  H.  518 ;  Yates  v.  Yates,  *  Craven  v.  Craven,  27  Wis.  418,  and 

13  N.  J.  Eq.  280 ;  Schonwald  v.  Schon-  cases  cited  in  note  1  svpra. 

wald,  2  Jones  Eq.  367 ;  Jenness  v.  Jen-  *  Clieever  t).  Wilson,  9  Wall.  108, 123; 

ness,  24  Ind.  355;  Phillips  v.  Phil-  Slade  ??.  Slade,  58  Maine,  157 ;  2  Bish- 

lips,  22  Wis.  256;  Shafer  i\  Bushnell,  op  on  Marriage  and  Divorce,  §754 

24  Wis.  372 ;  Craven  v.  Craven,  27  Wis.  et  seq. 


182  ■  MAKRIAGE    AND    DIVORCE. 

plaintiff  or  complainant  had  resided  in  the  State  for  a  year  next 
preceding  the  commencement  of  the  snit.^ 

Want  of  Residence  and  Fraud  open  to  Inter- State  Inquiry. 
Tlie  law  requiring  full  faith  and  credit  to  be  given  in  the  courts 
of  each  State  to  the  records  and  judicial  proceedings  of  the  courts 
of  other  States  does  not  prevent  an  inquiry  into  the  jurisdiction 
of  a  court  rendering  a  judgment  or  decree,  when  such  judgment 
or  decree  emanates  from  the  court  of  another  State.  Nor  is  an 
investigation  precluded  thereby  as  to  such  judgments  or  decrees 
having  been  obtained  by  fraud.  But  when  suit  is  brouglit  on 
either  in  a  different  State  than  where  rendered,  both  the  one  and 
the  other  may  be  collaterally  inquired  into,  and  if  it  turn  out 
that  jurisdiction  was  wanting,  or  that  the  judgment  or  decree  was 
obtained  by  fraud,  they  will  be  treated  as  a  nullity.'  In  Massa- 
chusetts, it  is  not  only  held  that  marriages  celebrated  in  other 
States,  which  are  there  valid  in  law,  are  also  valid  in  Massachu- 
setts, but  prior  to  the  passage  of  the  provision  of  the  Revised 
Statutes,  Chapter  75,  Sec.  6,  on  the  subject,  it  was  held  that  such 
mariages  were  valid  in  Massachusetts,  although  the  parties  went 
into  another  State  and  were  there  married,  on  purpose  to  evade 
the  law  of  Massachusetts. ^  Such  marriages,  however,  are,  by 
the  statute,  declared  void,  in  case  a  party  had  previously  been  di- 
vorced for  being  guilty  of  adultery.'*  And  so  in  said  State  it  is 
held  that  a  person  may  lawfully  marry  in  that  State  who  has  been 
divorced  from  a  former  marriage  in  another  State  for  a  cause  not 
recognized  as  sufficient  in  Massachusetts,  and  whose  companion 
by  the  former  marriage  is  still  living,  if  the  divorce  in  the  other 
State  be  valid  where  it  was  obtained.'  That  such  divorce,  being 
valid  were  obtained,  must  be  regarded  as  valid  everywhere,  if 
decreed  upon  proper  jurisdiction  of  the  case;  aud  that  the  stat- 

'  Kerr  v.  Kerr,  41  N.  Y.  (3  Hand.)  Andrews  v.  Montgomery,   19  John. 

272;  Hoflfman  v.  Hoffman.  46  N.  Y.  162;     Whitcomb    v.  Whltcorab,    4^ 

30;   2  Bishop  on  Marriage  and  Di-  Iowa,  437;  Rush  r.  Rush, 46  Iowa,  048; 

vorce,  §  144  et  aeg.    See,  also,  the  very  2  Bishop  on  Marriage  and  Divorce, 

late  case  of  State  v.  Armington,  17  §  753  et  seq. 

Alb.  Law  Jour.  451 ;  Ditson  r.  Ditson,  '  \ycst  Cambridge  v.  Lexington,  1 

4  R.   I.  93;  Hanover  v.  Turner,  14  Pick.  506;  Putnam  c.  Putnam,  8  Pick. 

Mass.  227;  Cooley's  Const.  Lim.  *400.  433;  Sutton  v.  "Warren.  10  Met.  451. 

«  Kerr  v.  Kerr,  41  N.  Y.  (2  Hand.)         *  Commonwealth  v.  Hunt,  4  Cush. 

272;  Berdan  v.  Fitch,  15  John.  121;  49. 
Shumway  v.  Stillman,  4  Cow.  292;         »  Clark  o.  Clark,  8  Cush.  385. 


INTER-STATE    CUSTODY    OF    CHILDEEX.  183 

nte  of  Massachusetts  disabling  a  party  under  certain  circum- 
stances not  necessary  to  be  here  referred  to,  does  not  apply  to 
such  a  case.^ 

TV.    Inter-State  Custody  of  Children.     Enforcement  op 

AlJMONY. 

Decree  for  Custody  of  Children.  A  decree  of  divorce  of  a 
State  court  of  general  jurisdiction  granting  to  the  party  who 
obtains  the  same  the  exclusive  custody  and  control  of  an  infant 
or  minor  child  of  the  parties,  and  over  which  child  the  court 
had  actual  jarisdiction  by  its  person  then  being  within  the  juris- 
diction and  power  of  the  court,  will,  while  it  remains  in  full 
force,  be  respected  and  regarded  as  binding  on  the  parties,  and 
as  conclusive  in  the  courts  of  all  other  of  the  States  wherein  its 
validity  is  brought  in  question,  unless  impeached  in  some  way 
recognized  by  the  law,  and  this,  too,  although  obtained  in  a  pro- 
ceeding in  rem.^ 

Action  at  Law  will  not  lie  on  Decree  for  Alimony.  Although, 
as  we  have  seen,  an  action  at  law  will  lie  ordinarily  on  a  decree 
in  chancery,  for  a  sum  of  money  certain,  of  a  court  of  another 
State,  yet  it  must  be  a  final  decree,  such  as  leaves  nothing  more 
to  be  done  or  liable  to  be  done  to  alter  the  status  thereof,  and, 
therefore,  an  action  at  law  cannot  be  sustained  on  a  decree  for 
alimony  made  in  a  case  of  divorce,  for  such  a  decree  is  in  its 
nature  temporary  and  may  be  increased  as  necessity  may  require 
and  the  ability  of  the  husband  permit,  or  it  may  be  diminished 
or  dissolved.  It  cannot  be  regarded  as  a  decree  final  and  abso- 
lute for  a  sum  certain,  and  cannot  have  the  force  or  effect  of  a 
judgment  at  Taw,  but  is  enforcible  in  chancery  only.^ 

If  Defendant  Removes  to  Another  State  a  Bill  of  Equity  Lies 
against  him  on  Decree  of  Alimony.  But  when  the  defendant 
husband  in  such  a  decree  removes  to  another  State  so  as  to  place 

'  Clark  v.  Clark,  8  Cush.  385.  not  a  final  decree  which  would  be 

"^  Wakefield  ^•.  Ives,  35  Iowa,  238.  binding  in  Massachusetts.     See,  also, 

But  see  Thorndice  v    Rice,  34  Am.  2  Bishop  on  Marriage  and  Divorce,  § 

Law  Reporter,  19,  20,  where  a  Massa-  204. 

chusetts  judge  decided  on  a  question  ^  Barber  v.  Barber,  2  Finn.  297,  299, 

of  haheas  corpus,  that  the  decree  of  a  300;  Elliott  v.  Raj'-,  2  Blackf  31.    See 

court  of  another  State  awarding  the  Harrison  v.   Harrison,  20  Ala.  629; 

custody  of  the  child  to  its  father  was  Barber  v.  Barber,  21  How.  582. 


184  MARRIAGE    AND    DIVORCE. 

himself  beyond  the  jurisdiction  of  the  court  where  the  decree  is 
made,  and  thereby  render  its  enforcement  impracticable,  a  bill  in 
equity  lies  in  the  State  of  the  husband's  residence  upon  ordinary 
principles  of  equity  to  enforce  the  same. 

When  it  Lies  in  United  States  Court.  And  in  such  case,  the 
parties  having  thus  become  citizens  of  different  States,  such  bill 
for  equitable  relief,  if  the  sum  claimed  brings  the  case  within 
the  jurisdiction  of  the  court,  will  be  sustained  in  the  circuit 
court  of  the  United  States  upon  general  principles  of  affording 
relief  in  equity  where  there  is  right  and  yet  no  remedy  at  law; 
but  such  United  States  court  takes  the  jurisdiction  iipon  such 
general  principles  only  and  not  as  a  matter  of  jurisdiction  in 
cases  of  divorce,  which  latter  the  United  States  courts  do  not 
entertain.  1  For  although  courts  of  the  United  States  have  n6 
jurisdiction  upon  the  subject  of  divorce  or  for  allowance  of 
alimony,  either  as  an  original  chancery  proceeding  or  as  incident 
thereto,  yet  when  a  divorce  has  been  decreed  by  a  State  court  of 
competent  jurisdiction,  with  alimony  to  the  wife,  then  if  such 
alimony  be  not  paid,  and  the  amount  thereof  and  citizenship  of 
the  parties  determinable  by  their  respective  domiciles  be  such  as 
in  these  respects  to  confer  jurisdiction  in  the  circuit  court  of  the 
United  States,  and  the  party  liable  for  the  same  has  placed  him- 
self beyond  the  jurisdiction  of  the  court  which  decreed  the 
alimony  and  divorce,  so  as  to  render  it  impracticable  for  that 
court  to  cause  its  process  to  act  upon  his  person  to  enforce  pay- 
ment under  the  decree,  and  has  no  property  within  the  jurisdic- 
tion whereof  it  may  be  made,  then  as  between  the  parties,  the 
circuit  court  has  jurisdiction  in  equity  to  enforce  the  decree  at 
the  suit  of  the  divorced  wife  in  whatever  district  the  defendant 
may  be  found,  if  at  the  time  they  be  citizens  of  different  States.^ 

And  where  such  divorce  was  a  divorce  a  vinculo,  and  the  hus- 
band thus  departing  into  a  different  State  and  residing  there, 
applied  for  and  got  a  divorce  from  the  same  wife  a  meiisa  et 
thorOy  such  subsequent  divorce  does  not  in  any  manner  discharge 
him  from  liability  to  enforcement  of  the  decree  of  alimony 
rendered  against  him  in  the  first  suit  for  divorce,  and  it  is  no 
defense  to  a  suit  on  such  decree  in  the  State  of  his  subsequent 
residence  or  elsewhere  when  sued  thereon.     Such  judgment  or 

'  Barber  «.  Barber,  21  How.  582.  •  Ibid. 


EFFECT  OF  FOEMEK  ADJUDICATION.        185 

<3ecree  rendered  in  a  State  court,  with  jurisdiction,  has  tlie  same 
binding  force  in  courts  of  any  other  State  of  the  United  States 
that  it  has  in  the  State  where  originally  rendered.  As  to  the 
domicile  of  the  wife  after  such  divorce,  the  American  rule  is  that 
when  parties  are  already  living  under  a  judicial  separation,  her 
domicile  no  longer  follows  his.  So  that  a  wife  so  divorced  may 
thereafter  establish  a  domicile  of  her  own.i 

Prosecution  for  Bigamy.  To  sustain  a  prosecution  for  bigamy 
in  one  State  for  cohabitation  therein  with  the  alleged  second  wife 
of  the  party,  where  both  the  marriages  are  shown  to  have  taken 
place  in  another  State,  it  must  be  alleged  in  the  indictment  that 
the  second  marriage  was  unlawful  in  such  other  State  at  the  time 
it  was  entered  into,  for  if  lawful  and  valid  where  it  occurred  it 
will  not  sustain  a  prosecution  for  bigamy.  ^ 

Y.     Inter-State  Effect  of  Former  Adjudication. 

Former  adjudication.  A  former  adjudication  in  another  State 
must,  in  order  to  be  a  bar,  be  an  adjudication  of  the  very  point 
or  subject  matter  involved  in  the  suit  w-herein  it  is  pleaded,  and 
must  be  of  the  principal  question  and  Unal  upon  the  merits  :  a 
merely  interlocutory  judgment,  order  or  decree,  in  reference 
thereto,  will  not  operate  as  a  bar  to  a  subsequent  action  or  suit, 
having  for  its  object  the  principal  or  main  purpose  of  that  in 
which  such  interlocutory  proceeding  occurred.  ^  The  mei'e  denial 
of  such  interlocutory  order,  judgment  or  decree,  in  a  similar 
action  or  suit  in  another  State,  as,  for  instance,  the  granting  or 
denial  of  alimony,  will  not  be  a  bar  to  the  granting  thereof  in 
another  suit  or  action  in  another  State,  if  to  such  latter  suit  or 
action,  the  principal  proceedings  in  such  prior  case,  and  the 
decision  therein  be  not  such  as  to  bar  and  preclude  the  plaintiff 
in  the  subsequent  suit  or  action,  and  the  right  to  maintain  the 
same.* 

1  Barber  v.  Barber,  21  How.  583.  *  Brinkley  v.  Brinkley,  50  N.  Y. 

"  State  V.  Palmer,  18  Vt.  570.  184,  203. 

«  Brinkley  D.  Brinkley,  5o  N.  Y.  184. 


186    INTER- STATS  LEGAL  STATUS  OF  PERSONS. 


CHAPTEli   XIX. 

INTEE-STATE   LEGAL   STATUS   OF   PEES0N8. 

L  Residence  axd  Domicile  Defined  and  Distinguished. 

II.  Domicile  of  Infants,  Minoks,  and  Adults. 

III.  Citizenship  —  Rights  of. 

IV.  Legal  Capacity  to  Act  . 

I.    Eesidence  and  Domicile  Defined  and  Distinguished. 

Besidence.  A  mere  residence  is  a  place  at  which  a  person 
resides  for  a  fixed  or  limited  time,  without  intention  of  perma- 
nency of  location.  The  limitation  of  time  may  be  fixed  by  a 
definite  period  or  term,  or  by  expected  future  occurrences  or  cir- 
cumstances, but  nevertheless,  accompanied  by,  as  well  as  begun 
with,  a  fixed  expectation  of  removal  in  the  future,  and  not  with 
the  intention  of  remaining  indefinitely.  ^ 

A  person  cannot  have  a  residence  in  two  dififerent  States  or 
countries  at  the  same  time.^  But  a  person  may  have  his  domi- 
cile in  one  State,  and  at  the  same  time  a  residence  in  another; 
the  one  in  his  permanent  dwelling  place,  and  the  other  his  place 
of  temporary  abiding.^  The  difference  depends  upon  his  inten- 
tion,* and  that  intention  may  be  shown  by  his  open  declarations 
and  acts,  or  in  the  absence  of  such,  then  by  satisfactory  circum- 
stances, if  such  exist."  If  one  so  resort  to  two  such  places, 
under  circumstances,  and  for  times  so  indefinite  as  to  render  it 
otherwise  not  apparent  which  of  the  two  is  his  domicile,  then  he 

>  Brent  v.  Armfield,  4  Cr.  C.  C.  579;  C.  101;   Case  v.  Clarke,  5  Mas.  70; 

2  Kent's  Com.  *430,  note/.  Hylton  v.  Brown,  1  Wash.  C.  C.  298. 
^  Ibid.  '  Tobin  v.  Walkinshaw,  1  McAllis- 

*  Haggart  v.  Morgan,  5  N.  Y.  422,  ter,  186;  Burnbam  v.  Rangeley,  1 
423 ;  In  re  Thompson,  1  Wend.  45 ;  Wood.  «&  M.  7 ;  Butler  v.  Farnsworth, 
Frost  V.  Brisbin,  19  Wend.  11;  Love  4  Wash.  C.  C.  101;  State  v.  Groome, 
V.  Cherry,  24  Iowa,  204,  209.  10  Iowa,  308 ;  Love  v.  Cherry,  24  Iowa, 

*  Prentiss  v.  Barton,  1  Brock.  C.  C.  204, 
389;  Butler  B.  Farnsworth,  4  Wash.  C. 


EESIDENCE    AND    DOMICILE    DEFINED.  187 

lias  his  own  right  of  election  in  law  to  determine  which  of  the 
two  is  his  domicile.^ 

In  some  of  the  States  the  ruling  is,  that  the  term  residencey 
and  permanent  residence,  or  domicile^  virtually  are  intended  as 
the  same  thing,  in  reference  to  the  necessity  of  a  residence  in 
judicial  proceedings  for  a  divorce,  and  in  regard  to  the  right  ta 
vote,  as  said  terms  are  used  in  the  laws  of  -the  States.  That  it 
must  be  such  a  residence  as  does  not  contemplate  a  removal,  or 
as  in  the  mind  of  the  person  is  permanent,  and  not  resorted  ta 
temporarily  for  a  particular  purpose.  That  is,  that  as  used  in 
the  statute,  it  does  not  mean  a  mere  abiding  in  the  State  ta 
enable  a  party  to  bring  himself  within  the  n^ere  letter  of  tne 
term,  or  more  circumscribed  meaning  thereof,  as  contradistin- 
guished from  domicile^  but  that  in  connection  with  proceedings 
for  divorce,  and  right  of  suifrage,  it  means  an  abiding  without 
intention  to  again  depart  from  the  State  to  reside  elsewhere. 
And  in  this  sense  it  is  no  doubt  meant  in  proceedings  of  this 
description.  2 

Domicile.  By  the  term  domicile  is  meant  the  place  whereat  a 
person  makes  his  residence  with  intent  to  indefinitely  there  reside, 
without  any  expectation  of  removing  in  the  future  therefrom. 
Every  domicile  is  necessarily  a  residence;  but  a  residence  is  not 
necessarily  a  domicile.  If  in  the  mind  of  the  person  there  abid- 
ing it  is  merely  a  temporary  abiding  place,  for  a  given  purpose 
and  definite  time,  with  expectation  to  then  remove  therefrom,, 
then,  although  while  there  the  party  in  the  more  broad  accepta- 
tion of  the  term,  may  be  said  to  there  reside,  yet  not  being  by 
him  regarded  as  his  settled  or  permanent  home,  it  is  not  in  the 
general  sense  thereof  or  legal  meaning  of  the  term,  his  domicile.^ 
The  latter  may  be  somewhere  else;  this  very  principle  was  acted 
upon  by  the  Supreme  Court  of  Iowa,  in  Love  v.  Cherry,  wherein 
a  party  was  held  to  have  had  a  domicile  in  Iowa,  during  several 
years'  residence  in  Texas.  ^ 

In  Louisiana,  the  true  principle  as  to  the  character  of  the  resi- 
dence essential  to  constitute  a  domicile  of  an  adult,  is  laid  down 
by  Justice  YooKHiES  as  follows:     "The  act  of  residence  does  not 

'  Burnham  v.  Rangeley,  1  Wood.  &  '  Love  v.  Cherry.  24  Iowa,  204,  209 ; 

M.  7.  2  Kent's  Com.  *430,  note/. 

2  Hinds  V.  Hinds,  1  Iowa,  36 ;  State  ^  24  Iowa,  204,  209. 
®.  Minnick,  15  Iowa,  123. 


188  INTER-STATE    LEGAL    STATUS    OF    PERSONS. 

alone  constitute  the  domicile  of  the  party,  but  it  is  the  fact  of 
residence  coupled  with  the  intention  of  remaining,  which  consti- 
tutes it."  1 

Domicile  Not  Acquired  by  Coercion.  Domicile  is  not  ac- 
quired by  constraint.  If  a  person  is  forced  from  the  country  of 
his  domicile  and  compelled  to  remain  involuntarily  in  another, 
such  constrained  and  enforced  residence,  no  matter  how  long, 
will  not  make  a  change  in  his  national  domicile;  on  the  contrary, 
his  original  citizenship  and  domicile  remain  to  him  with  tlie 
rights  thereof. 2  To  amount  to  an  abandonment  of  domicile  and 
country  there  must  be  the  concurrence  of  act  and  will.^  The 
original  domicile  remains  until  a  new  one  is  attained  to.* 

II.     Domiciles  of  Infants,  Minors  and  Adults. 

Infants  and  Minors.  The  domicile  of  an  infant  of  tender 
years,  or  during  nurture,  is  that  ]-)lace  which  is  the  domicile  of 
its  mother, 5  if  tlie  latter  have  charge  of  it.  The  domicile  of  the 
mother  is  that  which  is  the  domicile  of  the  husband,  if  she  has 
a  husband  and  they  are  not  permanently  separated.'  If  perma- 
nently separated,  then  she  may  acquire  a  domicile,  if  without 
one,  for  herself.'  The  domicile  of  the  minor  children  is  that 
which  is  the  domicile  of  the  parents.^  If  the  latter  be  changed 
theirs  is  changed  accordingly.  The  domicile  of  the  parents  is 
that  place  where  they  intentionally  fix  their  residence  with  the 
expectation  and  purpose  of  there  permanently  dwelling.' 

A  domicile  once  fixed  remains  such  until  another  domicile  be 
obtained,  unless  parted  with  and  abandoned.  i°  If  the  husband 
and  wife  have  acquired  a  domicile  and  the  husband  die,  then  the 
domicile  still  continues  to  be  that  of  the  wife,  and  of  the  minor 
children,  if  any,  until  a  difierent  one  is  legally  acquired.  ^^ 

Marital  Eight.    The  marital  rights  of  husband  and  wife  who 

'  McKowen  v.  McGuire,  15  La.  Ann.  '  Jeaness  ».  Jenness,  34  Ind.  355. 

637.  *Doe  r.  Litherberry,  4  McL.  442; 

•^  Hardy  v.  De  Leon,  5  Tex.  211.  Wheeler  v.  Burrow,  18  Ind.  14;  Whar- 

3  Ibid.  ton's  Conf.  of  Laws,  §  41;    Story's 

Mbid.  236;    2   Kent,  *430,  (note),  Conf.  of  Laws,  §g  45.46;  Schouler's 

Story's  Conf.  of  Laws,  |^§  44,  47.  Domestic  Relations,  *312,  *413. 
'Doe  V.  Litherberry,  4  McL.  443;  *  Supra,  Domicile. 

Wheeler  v.  Burrow,  18  Ind.  14.  '"  Ibid. 

«  Davis  V.  Davis,  30  111.  180;  Burn-         "  Pennsylvania  c.Ravenel,  21  How. 

ham  V.  Rangeley,  1  Wood.  &  M.  7.  103. 


CITIZENSHIP.  1S9 

marrv  in  a  State  in  which  neither  of  them  resides  are  regulated 
by  the  laws  of  the  place  of  the  husband's  domicile,.^ 

Infants  Born  Abroad.  The  domicile  of  an  infant  born  abroad 
is  that  which  is  at  the  time  thereof  the  domicile  of  the  parents, 
and  so  continues  until  their  domicile  is  chano-ed.^  And  though 
by  the  rule  laid  down  in  Graliam  v.  Monsergh,^  a  bastard  born  in 
another  State  of  a  mother  who  has  no  domicile  in  Vermont  at 
the  time,  cannot  be  affilliated  therein  under  the  statute  concern- 
ing bastardy,  yet  if  at  the  time  of  the  birth  of  a  bastard  the 
mother  be  ho7ia  fide  a  resident  of  the  State  so  as  to  have  a 
domicile  therein,  but  be  temporarily  absent  in  another  State  and 
the  child  there  be  born,  then  the  remedy  is  under  the  statute  of 
Term  out,  and  will  lie  in  the  courts  of  Verm  on  t.*  And  if  the 
evidence  of  domicile  is  doubtful,  yet  tends  to  show  a  residence 
in  the  State  where  the  proceedings  are  had,  then  the  same  is  to 
go  to  the  jury 'for  their  decision  as  a  question  of  fact.^ 

Domicile  as  Giving  Benefit  of  Conimon  Schools.  The  domi- 
cile of  minor  children  being  that  which  is  their  parents',  it 
results  that  minor  children  of  parents  resident  and  fully  dom- 
iciled in  one  State  have  no  right  to  the  benefits  of  the  common 
schools  of  other  States,  and  that  parents  cannot  gain  for  them 
such  a  domicile  as  will  entitle  them  to  the  privileges  of  such 
schools  by  merely  sending  them  to  reside  with  friends  in  such 
other  State  or  States  for  the  purpose  of  admission  to  the  com- 
mon schools  thereof.' 

III.     Citizenship. 

"  All  persons  born  or  naturalized  in  the  United  States,  and 
subject  to  the  jurisdiction  thereof,  are  citizens  of  the  United 
States  and  of  the  State  wherein  they  reside."'"  Such,  in  the 
language  of  the  constitution  itself,  is  given  as  the  true  definition 
of  actual  citizenship.  "The  citizens  of  each  State  are  entitled 
to  all  the  privileges  and  immunities  of  citizens  in  the  several 
States.""     There  is  recognized  in  the  courts  a  constructive  citi- . 

'  Land  v.  Land,  14  Sm.  &  M.  99.  *  Ibid. 

«  Warren  «.  Hofer,  13  Ind.  167 ;  Kei-         « Wheeler  «.  Burrow,  18  Ind.  14. 
stand  xi.  Kuns,  8  Blackf.  845 ;  Wheeler         '  Art.  14,  §  1,  of  Amendments  to  the 

».  Burrow,  18  Ind.  14.  Const.  United  States. 

8  22  Vt.  543.  8  Art.  4,  §  2,  Const.  United  States. 

<  Eggleston  v.  Battles,  26  Vt.  548. 


190  INTEU-STATE    LEGAL    STATUS    OF    PERSONS. 

zensliip  which  is  satisfied  by  proof  of  actual  permanent  residence 
in  a  State  in  proceedings  to  remove  suits  from  State  to  National 
courts,  to  the  effect  that  the  term  citizen,  as  used  in  the  act  of 
Congress  of  September  24,  1789,  in  relation  to  the  jurisdiction 
of  the  United  States  Circuit  Court,  and  extending  the  same  to  a 
suit  between  a  citizen  of  tlie  State  wherein  the  suit  is  brought 
and  a  citizen  of  another  State,  is  construed  to  mean  no  more  in 
that  connection  than  that  the  parties  shall  be  perma7iently  resi- 
dent, or  domiciled,  in  their  respective  States.  It  is  not  neces- 
sary to  jurisdiction  in  such  cases  that  they  be  citizens  in  a  polit- 
ical sense;  actual  residence  is  all  that  is  required. ^  It  is  also 
held  that  the  designation  includes  private  corporations  as  well  as 
natural  persons.  ^ 

IV.    Legal  Capacity  to  Act. 

In  Personal  Matters.  It  is  a  principle  of  universal  law,  or 
of  what  is  sometimes  regarded  as  the  jus  gentium,  that  tlie  legal 
capacity  of  persons  to  act  and  to  make  contracts  for  themselves 
depends  upon  the  law  of  the  State  or  country  where  the  trans- 
action takes  place,  as  to  all  personal  matters,  whether  the  subject 
matter  contracted  about  or  involved  be  within  the  State  or  with- 
out the  Stale  wherein  the  transaction  occurs.' 

As  to  Real  Property.  But  in  reference  to  contracts  about  the 
gale  and  conveyance  of  land  such  capacity  depends  upon  the  laws 
of  the  State  wherein  the  land  is  situated.*  This  is  the  general 
ruling  in  America  as  to  the  law  upon  these  subjects  in  whatso- 
ever court  the  question  may  arise,  domestic  or  foreign.     This 

'  Den  V.  Sharp,  4  Wash.  C.  C.  009:  363-373;  Partee  v.  Silliman,  44  Miss. 

Evans  V.  Davenport,    4   McL.    574;  73;  2  Kent's  Com.  *  429. 

Prentiss  c.  Barton,  1  Brock.  389;  Read         *  Huey's  Appeal,  supra;  KWng  v. 

■  V.  Berlrand,  4  Wash.  C.  C.  514;  Shel-  Sejour.  4  La.  Ann.  128;   Clopton  e. 

ton  V.  Tiffln,  6  IIow.  163.  Booker,  27  Ark.  482;  Barnum  r.  Bar- 

»  Louisville,  Cin.  &  Charl.  R.  R.  Co.  num,  42  Md.  251 ;  White  v.  Howard, 

V.  Letson.  2  How.  497;   Ohio  &  Miss.  46  N.  Y.  144;  Pell  v.  Miller,  11  Ohio 

R.  R.  Co.  T.  Wheeler,  1  Black,  286;  St.  331;   McCormick  v.  Sullivan,  10 

Marshall  v.  Bait  &  Ohio  R.  R.  Co.,  16  Wheat.  102;  Kerr  v.  Moon,  9  Wheat. 

How.  314 ;  French  v.  Lafayette  Ins.  565 ;  Hughes  v.  Hughes,  14  La.  Asm. 

Co.,  5  McL.  461;  New  York  &  Erie  85;  2  Kent's  Cona.  *429  and  4  Ibid. 

R.  R.  Co.  V.  Shepard,  5  McL.  455.  *  441 ;  Story's  Conflict  of  Laws,  §  424 

*  Huey's  Appeal,  1  Grant's  Cases,  et  seq. 
61 ;  Story's  Conflict  of  Laws,  §§  51, 


LEGAL    CAPACITY    TO    ACT.  191 

rule  applies  to  questions  of  infancj,  coverture,  majority  and  of 
legal  capacity  generally. ^  Thus  persons  having  attained  to  their 
majority  or  being  of  contracting  age  by  the  laws  of  the  State 
wherein  they  contract,  may  do  so  in  reference  to  personal  inter- 
ests and  matters  wherev^er  such  interests  and  property  may  be, 
whether  in  one  State  or  any  other.  But  if  the  transaction  be 
for  the  selling  or  conveyance  of  lands,  then  the  capacity  to  sell 
or  convey  must  be  such  as  is  required  by  the  law  of  the  State 
wherein  the  lands  lie,  and  this  too  whether  the  contract  be  made 
or  executed  in  the  State  of  the  vendor's  domicile  or  in  the  State 
where  the  lands  are  situated,  or  in  an  entirely  different  State  from 
either.  In  other  words,  the  law  of  the  State  where  the  lands 
lie  governs  as  to  the  age  of  contracting  and  other  capacity  of 
persons  selling  or  conveying  the  same;  but  the  law  of  the  place 
of  contracting,  as  above  stated,  governs  as  to  capacity  to  contract 
in  selling  or  conveying  personal  property,  and  in  all  contracts  of 
a  personal  nature.^  The  mere  question  oi  majority  and  freedom 
from  parental  control  is  regulated  by  the  law  of  the  domicile. 
At  common  law  it  was  as  to  both  sexes  at  the  age  of  twenty-one. 
By  the  civil  law,  as  in  force  in  Louisiana  at  the  time  of  its  ces- 
sion to  the  United  States,  persons  attained  their  majority  at  the 
age  of  twenty -live.  But  by  the  act  of  the  Legislature  of  Orleans 
Territory  of  the  20th  of  May,  1S06,  the  law  in  this  respect  was 
changed,  to  take  effect  in  two  years  next  from  that  date.  By 
this  change  the  age  of  twenty-one,  as  at  common  law,  was  fixed 
as  the  time  of  attaining  to  majority. ^ 

By  the  same  act  it  was  provided  that  persons  then  in  said 
Territory  who  had  come  therein  from  any  other  country  and  per- 
sons thereafter  coming  therein  from  another  country,  of  twenty- 
one  years  of  age,  and  who  had  attained  to  their  majority  in  the 
country  from  whence  they  came,  according  to  the  law  thereof, 
should  continue  to  enjoy  the  rights  of  majority  in  the  Terri- 
tory.* 

Capacity  to  Marry.  Capacity  of  persons  to  mamj  depends, 
as  a  general  principle,  upon  the  law  of  the  country  or  State 
wherein  the  marriage  is  celebrated,  and  not  upon  the  law  of  the 

1  Huey's  Appeal,  1  Grant's  Cases,  ^  See  cases  cited  above. 

51 ;  Story's  Conflict  of  Laws,  §§  51,  «  3  Martin's  Dig.  §  1. 

65 ;  Baruum  'd.  Baruura,  43  Md.  251 ;  *  3  Martin's  Dig.  §  3. 
White  «.  Howard,  46  N.  Y.  144. 


192    INTER-STATE  LEGAL  STATUS  OF  PERSONS. 

domicile,  if  the  marriage  take  place  in  a  different  State  or  sov- 
ereignty.^ There  are  exceptions  to  this  rule  of  cases,  involving 
usages,  laws  or  customs,  which  outrage  the  moral  senses  and 
principles  of  the  advanced  civilization  of  the  age,  as  for  instance 
polygamous  and  incestuous  marriages,  though  tolerated  where 
entered  into,  will  not  be  regarded  as  legal  in  communities  where 
such  practices  are  inhibited  by  law.'  But  where  there  is  a  mere 
inhibition  or  incapacity  to  marry  in  one  State  and  marriage  is 
had  in  another,  it  is  otherwise,  as  where  a  citizen  of  New  York,  who 
labored  under  disability  to  marry  again  during  the  lifetime  of  a 
former  wife  from  whom  there  had  been  a  divorce,  married  again 
in  'New  Jersey,  himself  and  the  person  whom  he  so  married  in 
New  Jersey  both  residing  at  the  time  in  New  York  and  con- 
tinued thereafter  to  reside  in  New  York  until  his  death,  the 
widow  was  adjudged  entitled  to  dower  as  his  widow  by  lawful 
marriage,  she  having  no  knowledge  at  her  marriage  of  the  exist- 
ing inhibition  in  law  to  her  husband's  marriage  in  New  York, 
and  it  not  appearing  that  they  went  to  New  Jersey  to  be  married 
in  order  to  evade  the  effect  of  the  law  of  New  York.^  But 
where  parties  are  incapacitated  by  the  law  of  their  domicile  from 
marrying,  and  with  the  intent  to  avoid  such  law  escape  into 
another  jurisdiction  where  their  marriage  is  valid  and  are  there 
married,  and  then  return  to  the  place  of  their  domicile,  such  a 
marriage  will  be  considered  as  invalid  as  being  in  contravention 
of  the  law  by  which  the  parties  were  governed.* 

Plea  of  Infancy.  When  the  plea  of  infancy  is  set  up  in  de- 
fense of  a  suit  on  a  contract  made  in  a  different  State  than  the 
one  wherein  the  suit  is  pending,  then  the  law  of  the  place  ot 
making  the  contract  is  the  rule  of  decision;"  and  if  there  be  no 
evidence  before  the  court  as  to  what  that  law  is,  then  the  com- 
mon law  on  the  subject  is  presumed  to  be  the  law.    So  that  proof 

'  Pondsford  v.  Johnson,  2  Blatchf.  Mass.  157 ;  Putnam  v.  Putnam,  8  Pick. 

51;  2  Kent's  Com.  *459  and  notes;  433;  Stevenson  v.  Gray,  17  B.  Mon. 

Story's  Conflict  of  Laws,  §  101  et  seq.  193. 

See  supra,  Cliap.  XVIII.  *  Le  Breton  v.  Nouchet,  3  Martin, 

»  Pondsford  v.  Johnson,  2  Blatchf.  60;  2  Kent's  Com.  *4o9  and  notes. 

51 ;  2  Kent's  Com.  *  459.  '  Holmes  v.  Mallett,  Morris,  (Iowa,) 

'Pondsford  v.  Johnson,  2  Blatchf  82;  and,  an<«,  Inter-State  Law  of  Con- 

51;  State  v.  Kennedy,  76  N.  C.  251;  tracts.  Chap.  VIII.;  Huey's  Appeal, 

Commonwealth  v.  Kinney,  6  The  Re-  1  Grant's  Cases,  51. 
porter,  733 ;  Med  way  v.  Needham,  16 


LEGAL    CAPACITY    TO    ACT.  193 

of  an  age,  at  the  time  of  making  the  contract,  which  fixes  infancy 
on  the  defendant  within  the  terms  of  the  common  law,  dispenses 
with  the  necessity  of  evidence  to  prove  the  law  of  the  place  ot 
the  contract  in  support  of  the  plea.i 

>  Holmes  v.  Mallett,  Morris,  (Iowa,)  Z\ 
13 


194  JUBISDIOTION    OF    PERSONAL    PROPEBTY. 


CHAPTER  XX. 

LEGAL  STATES  AND  JURISDICTION  OF   PERSONAL   PROPERTT  AND 
PERSONAL    INTERESTS. 

I.  TuE  Legal  Status  Follows  the  Owner. 

II.  Exceptions  to  the  Rule. 

III.  Sales  and  Transfers  Valid  where  made  are  Valid  Elsewhere. 

IV.  Distribution  op  a  Deceased  Person's  Movables. 

V.  Locality  and  Situs  op  Money  Obligations  and  Debts. 

VI.  Mortgages  op  Personal  Property. 

VII.  Subscriptions  to  Capital  Stock. 

VIII.  Voluntary  Assignments.  '" 

IX.  When  Personal  Property  is  Taxable. 

I.     The  Legal  Status  Follows  the  0\vner. 

No  fixed  Situs.  In  the  language  of  Ranney,  J., "  personal  prop- 
erty has  no  fixed  situs!'''  It "  adheres,  in  contemplation  of  law,  to 
the  person  of  the  owner,  and  is  disposed  of  in  almost  every  respect, 
whether  of  transfers  inter-vivos,  testamentary  dispositions,  or  suc- 
cessions by  the  law  of  his  domicile."^  This  is  a  universal  rule  of 
law  among  all  civilized  people,  and  has  become  a  sort  of  common 
law  of  the  world.  So  thoroughly  is  it  a  part  of  the ^'?^  gentium 
or  law  of  nations,  that  instead  of  the  local  law  of  place  giving  way 
to  it  as  matter  of  comity^  it  is  itself,  in  virtue  of  its  universality, 
a  part  of  the  local  law  in  every  civilized  community.^  In  the 
language  of  the  court,  in  Despard  v.  Churchill^^  "  personal  prop- 
erty is  subject  to  the  law  which  governs  the  person  of  its  owner, 

'  Swearingen  v.  Morris,  14  Ohio  St.  424. 429 ;  Sill  v.  Worswick,  1  H.  Black. 

424;  Guillander  v.  Howell,  35  N.  Y.  CGo,  690;   Holmes  v.  Remsen,  4  John. 

C57;  Mills  v.  Thornton,  26  111.  300;  Ch.  460;  Harvey  v.  Richards,  1  Mas. 

Ackerman  v.  Cross,  54  N.  Y.  29;  Des-  381;  Moultrie  v.  Hunt,  23  N.  Y.  394; 

pard  V.  Churchill,  53  N.  Y.  192 ;  Har-  DeCouche  v.  Savetier,  3  John.  Ch.  190 ; 

vey  V.  Richards,  1  Mas.  381 ;  Kelly  v.  DeGobiy  v.  DeLaistre,  2  Har.  &  John. 

Crapo,  45  N.  Y.  86;  Partee  v.  Silli-  193;    Shultz  t.  Pulver,  3  Paige,  182; 

man,  44  Miss.  272.  Mills  v.  Thornton,  26  111.  300. 

«  Swearingen  v.  Morris,  14  Ohio  St  » 53  N.  Y.  192. 


EXCEPTIONS    TO    THE    RULE.     •  195 

as  to  its  transmission  bj  last  will  and  testament;  and  this  prin- 
cipal, though  arising  in  the  exercise  of  international  comity,  has 
become  obligatory  as  a  rule  of  decision  by  the  courts."  As  is 
said  bj  Lord  Loughborough:  "It  is  a  clear  proposition, not onl}' 
of  the  law  of  England,  but  of  every  country  in  the  world  where 
law  has  the  semblance  of  science,  that  personal  property  has  no 
locality.  Tlie  meaning  of  that  is,  not  that  personal  property  has 
no  visihle  locality,  but  that  it  is  subject  to  that  law  which  gov- 
erns the  person  of  the  owner,  both  with  respect  to  the  disposi- 
tion of  it  and  with  respect  to  the  transmission  of  it,  either  by 
succession  or  by  the  act  of  the  party.  It  follows  the  law  of  the 
person.  The  owner,  in  any  country,  may  dispose  of  his  per- 
sonal property.  If  he  dies,  it  is  not  the  law  of  the  country  in 
which  the  property  is,  but  the  law  of  the  country  of  which  he 
was  a  subject,  that  will  regulate  the  succession."  ^  And  Ranney, 
J.,  in  Swearingen  v.  Morris,'^  above  cited,  says:  "Indeed,  so 
universally  has  it  been  treated  as  a  part  of  the  jus  gentiuvii^  and 
thus  incorporated  into  the  municipal  law  of  every  country,  that 
C.  J.  Abbott  declared  it  not  correct  to  say,  that  the  law  of  Eng- 
land gives  way  to  the  law  of  the  foreign  country;  but  that  it  is 
a  part  of  the  law  of  England  that  personal  property  should  be 
distributed  according  to  the  jus  domicilii.''''  Justice  Ranney 
adds:  "The  doctrine  has  been  universally  acted  upon  in  this 
country,  and  it  will  be  readily  seen  that  it  could  nowhere  be 
applied  with  greater  benefit  or  less  inconvenience  than  between 
the  States  of  the  American  Union." 

II.     Exceptions  to  the  Eule. 

Local  Liabilities.  To  this  general  rule  of  the  law  there  are 
these  exceptions:  That  visible  or  tangible  personal  property  situ- 
ated in  another  State  than  that  of  the  owner's  domicile  is  there  first 
liable,  by  paramount  right  of  the  local  government,  and  of  credi- 
tors of  the  owner  therein  resident,  to  be  distributed  in  satisfac- 
tion of  all  just  demands  against  the  same  or  against  the  owner 
thereof,  which  the  local  government  or  its  citizens  or  subjects^  are 

'  Sill  v.  Worswick,  1  H.  Black.  690.  transfer  of  the  owner,  as,  for  instance. 

2 14  Ohio  St.  424,  429.  an  assignment  with  preferences,  for 

3  Swearingen  v.  Morris,  14  Ohio  St.  benefit    of   creditors,    then   if   such 

424,  429;  Guillancler  v.  Howell,  35  N.  transfer  be  prohibited  by  the  law  of 

T.  657.     And  if  claimed  under  a  the  State  where  the  property  is  situ- 


196  JURISDICTION    OF    PERSONAL    PROPERTY. 

entitled  to,  and  is  there  liable,  also,  to  taxation,  if  in  a  diflferent 
sovereignty.^ 

A  sale  or  transfer  by  the  owner,  valid  where  the  owner  lives, 
is  valid  in  the  State  where  the  pro^  erty  is,  not  only  as  between 
the  parties  thereto,  but  also  as  against  all  others,  except  citizens 
or  subjects  of  the  State  wherein  the  property  is,  having  prior 
just  claims  against  the  owner,  to  which  it  may  be  subject,  or  as 
against  the  claims  of  the  State  itself.  The  right  of  satisfaction 
of  these  out  of  the  property  is  paramount.^  So  if  the  owner 
die  intestate,  the  property  is  to  be  distributed  in  the  manner  and 
to  those  to  whom  it  descends  by  the  law  of  his  domicile  at  the 
time  of  his  death,  but  being  first  subject  to  such  local  claims  of 
persons  or  the  State  as  exist  where  it  is  situated.  The  residue, 
after  satisfying  these,  is  to  be  thus  distributed  by  the  local  court, 
or  turned  over  to  the  administrator  of  the  domicile  of  the  de- 
ceased to  be  then  distributed.  ^  And  in  like  manner  a  devise  or 
testamentary  disposition  of  the  personal  property,  valid  by  the 
law  of  the  domicile  of  the  testator,  is  (subject  to  the  liabilities 
and  exceptions  aforesaid,)  valid  where  the  property  is  situated  in 
such  other  jurisdiction,  and  will  be  so  distributed,  either  by  the 
court  of  the  country  where  situated,  or  else  the  residue,  after  satis- 
faction of  liability.  Will  be  turned  over  to  the  administrator  or 
executor  of  the  deceased,  in  the  courts  of  the  country  of  his  late 
domicile.^  But  this  rule  of  law,  though  general,  as  before  stated, 
is  nevertheless  subject  to  alteration  or  legislative  control  of  the 
several  States,  they  being  sovereign  in  their  own  domestic  affairs; 
and  therefore,  where  a  dift'erent  rule  is  by  statute  enacted  in  a 
State,  then  such  local  statutory  law  of  such  State  will  govern  in 
regard  to  personal  property  therein  situated,  although  the  prop- 
erty be  owned  by  a  resident  or  citizen  of  another  State.  *     So,  if 

ated,  it  •will  not  be  enforced  in  the  Qrattan  v.  Appleton,  8  Story,  755 ; 

courts  of  such  State  as  against  credi-  Williams  v.  Williams,  5  Md.  467;  2 

tors  of  the  assignor.     Ibid. ;  Despard  Kent's  Com.  *429. 

t.  Churchill,  53  N.  Y.  102,  199.  *  Swearingen  v.  Morris,  14  Ohio  St. 

'  See  Post  Sec.  IX.  of  this  chapter.  424;  Harvey  v.  Richards,  1  Mas.  381 ; 

'  Swearingen  v.  Morris,  14  Ohio  St.  Dawes  v.  Head,  3  Pick.  128;  Despard 

424;  Parsons  v.  Lyman,  20  N.  Y.103;  v.  Churchill,  53  N.  Y.  192,  199;  Du. 

Kelly  V.  Crapo,  45  N.  Y.  86.  puy  v.  Wurtz,  53  N.  Y.  556 ;  2  Kent's 

•  Swearingen  c.  Morris,  14  Ohio  St.  Com.  '•'429. 

424 ;    Johnson  v.  Copeland,  35  Ala.  '  Guillander  v.  Howell,  85  N.  Y. 

521;  Hill  V.  Townsend.  24  Tex.  575;  657;  Despard  t.  Churchill,  68  N.  Y. 

Townes  c.  Durbin,  3  3Iet.  (Ky.)  352;  192,  200. 


SALES    AND    TRANSFERS    VALID    WHERE    MADE.      197 

to  enforce  the  law  of  tlie  owner's  domicile,  or  to  enforce  a  sale  of 
property  there  made  by  him,  valid  where  made,  would  violate  the 
policy  of  the  State  where  the  property  is  situated,  or  be  contrary 
to  good  morals,  or  work  an  injury  to  citizens  or  residents  of  such 
State,  the  law  of  the  former  will  control.^  So,  if  the  personal 
property  has  a  sort  of  fixed  locality  and  purpose,  as  if  the  owner 
has  mills  or  other  local  pro^Derty  to  which  there  is  personal  prop- 
erty appurtenant  or  servient  in  its  uses,  then  the  rule  of  law  is 
in  some  respects  different. ^  Under  such  circumstances  personal 
property  thus  servient  may  pass  with  the  realtj',  under  the  local 
laws  of  the  State  or  country.  In  regard,  however,  to  remitting 
the  effects  of  assets  of  a  decedent's  estate  to  the  administration 
at  the  domicile,  after  satisfying  local  claims,  it  is  held  not  to  be 
so  much  a  rule  of  imperative  law  requiring  the  same  to  be  done, 
as  it  is  a  matter  within  the  just  and  sound  discretion  of  the 
court.  3 

Leaseholds.  The  proceeds  of  leasehold  estates  are  to  be  re- 
garded as  personal  effects,  and  as  coming  within  the  rule  of  fol- 
lowing the  person  of  a  decedent,  and  as  distributable  in  accordance 
with  the  law  of  his  domicile.^ 

III.     Sai.e8  and   Transfers  Valid  Where   Made,  are  Valid 

Elsewhere. 

A  legal  transfer  of  personal  property  by  a  duly  recorded  deed 
in  a  State  where  such  transfer  carries  the  ownership,  and  is  valid 
irrespective  of  possession  thereof,  has  like  validity  in  all  other 
States  where  property  of  the  description  transferred  is  by  law 
recognized  as  property,  notwithstanding  the  absence  of  posses- 
sion under  such  transfer,  and  notwithstanding  no  record  is  made 
of  the  deed,  in  the  State  or  States  to  which  such  property  is 
removed,  and  irrespective  of  any  law  of  such  latter  State  or  States 
requiring,  as  a  prerequisite  to  validity,  the  recording  of  transfers 
of  such  property,  where  the  possession  thereof  has  not  passed 
with  the  transfer  to  the  grantee  in  the  deed.  The  contract  being 
valid  where  made,  and  not  made  in  reierence  to  performance  in 

1  Guillander  v.  Howell.  35  N.  Y.  192,  200;  Harvey  v.  Richards,  1  Mas. 

657;  Despard  v.  Churchill,  53  N.  Y.  381;  Parsons  v.  Lyman,  20  N.  Y.  103. 

192,  200.  *  Despard  v.  Churchill,  53  N.  Y. 

"^  Mills  V.  Thornton,  26  111.  300.  192. 

*  Despard  v.  Churchill,  53  N.  Y. 


198  JURISDICTION    OF    PERSONAL    PROPERTY. 

any  particular  place,  is  valid  everjwliere  else  where  the  subjuct 
matter  of  it  is  regarded  iu  law  as  property.  The  local  State  laws 
thus  requiring  recording  are  intended  to  operate  on  proj)erty 
within  the  State,  and  contracts  or  sales  made  within  such  State, 
and  cannot  affect  contracts  made  out  of  the  State  as  to  property 
also  out  of  the  State  at  the  time,  however  the  latter  be  brought 
into  the  State  thereafter. ^  Thus,  when  an  absolute  title  to  mov- 
ables is  acquired  in  a  State  where  the  property  is  situated  by  the 
laws  of  that  State,  such  title  will  be  respected  in  every  other 
State  wherein  the  property  comes,  if  it  be  such  property  or  thing 
as  by  law  of  the  latter  State  is  regarded  as  legitimate  subject  ot 
ownership.  2 

If,  in  making  such  title,  the  laws  of  the  other  State  wherein 
the  title  was  acquired  come  in  question,  they  are  to  be  proven  as 
facts.  State  courts  not  taking  notice  of  the  statute  laws  of  other 
States.  3 

In  Suarez  v.  Mayor  of  New  York,  the  vice-chancellor  lay& 
down  the  same  doctrine  in  the  following  terms  :  "  It  is  an  uni- 
versal principle  of  jurisprudence  at  this  day,  in  civilized  coun- 
tries, that  the  succession  of  personal  or  movable  property, 
wherever  situated,  is  governed  exclusively  by  the  law  of  the 
country  where  the  decedent  was  domiciled  at  the  time  of  his 
death."  * 

Sales  Valid  and  Sales  Invalid  for  Illegal  Intent.  Although  it  is 
the  law  that  if  property  be  sold,  and  delivered,  in  the  State  where 
the  contract  is  made,  and  the  sale  is  there  legal,  and  no  further 
act  is  to  be  done  to  complete  the  transaction  on  the  part  of  the 
vendor,  the  price  thereof  may  be  recovered  in  another  State 
wherein  by  law  such  sales  would  be  illegal; '  yet  if  the  intent  ia 
that  the  goods  shall  be  illegally  sold  in  another  State,  or  that  the 
vendor  shall  do  some  act  to  assist  or  aid  in  the  illegal  sale,  the 
contract  will  be  treated  as  void,  and  will  not  be  enforced  in  the 

1  Bank  of  United  States  v.  Lee,  13  » Taylor  v.  Boardman,  25  Vt.  581 ; 

Pet.  107;  De  Lane  v.  ^loore,  14  How.  Dakin  «.  Pomeroy,  9  Gill,  1.    And  if 

253,  266;   Bruce  r.  Smith,  3  Har.  &  no  proof  be  given  of  what  the  law  of 

John.   499;    Crenshaw    v.    Anthony,  the  other  State  is,  then  the  presump- 

Martin  &  Yerger,  102,  110;  Rabun  v.  tion  is  that  it  is  the  same  as  the  law 

Rabun,  15  La.  Ann.  471 ;  Ockerman  of  the  forum.    Ibid. 

».  Cross.  54  N.  Y.  29,  32.  ■•  2  Sandf.  Ch.  173. 

*  Taylor  v.  Boardman,  25  Vt.  581.  '  Banchor  t.  Mansel,  47  Maine,  58, 61. 


SALES    AND    TRANSFERS    VALID    WHERE    MADE.      199 

State  where  it  contemplated  the  goods  were  to  be  disposed  of, 
and  wherein  by  law  such  sales  are  prohibited,  i  The  case  of  De 
Lane  v.  Moore  involved  an  «;i2fe-nnptial  contract  entered  into 
and  recorded  in  the  State  of  South  Carolina,  where  the  property 
then  was,  and  the  parties  then  resided ;  after  making  and  record- 
ing the  contract,  the  parties  thereto  removed  to,  and  became  citi- 
zens of  Alabama,  taking  the  property  with  them,  and  there 
retaining  it.  After  the  death  of  the  wife,  the  husband  sold  it, 
or  a  portion  of  it,  in  violation  of  the  a??i^-nuptial  contract. 
One  defense  against  the  right  of  the  wife  and  her  representatives 
set  up  was,  that  for  want  of  recording  in  Alabama,  the  contract 
was  inoperative,  inasmuch  as  the  husband  exercised  continuously 
the  outward  evidences  of  possession  and  apparent  ownership; 
but  the  Supreme  Court  of  the  United  States  as  to  that  point, 
ruled  in  favor  of  the  continued  force  and  validity  of  the  contract. 
Daniel,  J.,  in  delivering  the  opinion  of  that  court,  says:  ''  Tlie 
position  here  advanced  is  not  now  assumed  for  the  first  time  in 
argument,  in  this  court.  It  has,  upon  a  former  occasion,  been 
pressed  upon  its  attention,  and  has  been  looked  into  with  care, 
and  unless  it  be  the  intention  of  the  court  to  retrace  the  course 
heretofore  adopted,  this  may  be  now,  as  it  formerly  was,  called 
an  adjudicated  question.  The  case  of  The  Bank  of  the  United 
States  V.  Lee,'^  brought  directly  up  for  examination  of  this  court, 
the  effect  of  a  judgment  and  execution  obtained  by  a  subsequent 
creditor  in  the  District  of  Columbia,  upon  property  found  within 
that  district,  but  which  had  been  settled  upon  the  wife  of  a  debtor, 
by  a  deed  executed  and  recorded  in  Virginia,  according  to  the 
laws  of  that  State,  the  husband  and  wife  being  at  the  time  of 
making  the  instrument,  inhabitants  of  the  State  of  Yirginia. 
The  question  was  ^  *  '^  elaborately  investigated,  and  the 
cases  from  the  different  States,  founded  on  their  registry  acts, 
carefully  collected.  *  *  *  This  court  came,  unhesitatingly 
and  clearly  to  the  conclusion,  that  the  deed  of  settlement  exe- 
cuted and  recorded  in  favor  of  Mrs.  Lee,  in  conformity  with  the 
laws  of  Virginia,  protected  her  rights  in  the  subject  matter 
settled,  against  the  judgment  of  the  subsequent  creditor  in  the 
District  of  Columbia."  Thus,  it  seems  to  be  well  settled  in  these 
States,  that  the  ownership  of  personal  property,  and  its  liability 

1  Smith  c.  Godfrey,  28  N.  II.  379 ;  ^  13  pgt.  107. 

Wilson  1).  Strdtton,  47  Maine,  120. 


200  JURISDICTIOIf   OF    PERSONAL    PROPERTY. 

or  non-liabilitj  to  sale  by  another,  or  to  execution  for  the  debts 
of  another,  are  not  affected  by  its  removal  out  of  one  State  into 
another;  for  although  in  the  case  of  De  Lane  v.  Moore^^  the 
ultimate  ruling  was  against  the  claim  of  the  wife's  heirs,  yet  that 
ruling  was  expressly  put  upon  the  staleness  of  the  claim,  and  the 
great  lapse  of  time  between  the  time  of  their  arrival  of  age,  the 
death  of  the  parents,  and  the  time  of  commencing  the  suit. 

lY.      DiSTBIBUTION   OF   A   DECEASED   PeRSON's   MOVABLES. 

Follows  the  Law  of  his  Domicile.  The  personal  property  of 
persons  who  die  intestate  is  distributable  according  to  the  law  of 
the  deceased  person's  domicile,  without  regard  to  the  place  of  his 
death,  or  the  jurisdiction  in  which  the  projDorty  is  situated;  and 
such,  too,  is  the  rule  in  questions  involving,  in  such  cases,  the 
inheritable  capacity  of  claimants,  as  their  legitimacy,  marriage, 
and  degrees  of  relationship.  ^ 

These  principles  have  prevailed  so  long  and  so  universally,  that 
they  have  come  to  be  regarded  as  part  of  the  law  of  nations.* 
If  such  be  the  national  usage  among  governments  foreign  in 
every  respect  to  each  other,  then  still  more  forcible  is  the  rea- 
son of  the  rule  among  kindred  communities  like  the  American 
States.  Wayne,  J.,  quoting  from  Erskine's  Institutes  of  the 
Laws  of  Scotland,  says,  in  substance,  that  when  a  Scotchman 
dies  abroad,  his  personal  estate,  in  case  he  dies  intestate,  descends 
according  to  the  law  of  Scotland;  and  that  when  a  foreigner  dies 
in  Britain,  his  personal  estate  descends  according  to  the  law  of 
his  domicile  or  own  country;  and  that  such  is  the  law,  whatever 
the  locality  of  the  property  may  be,  and  that  this  law  of  Scot- 
land, which  is  an  instance  of  the  law  of  the  other  European 
countries  on  the  subject,  was  at  one  time  different,  but  is  now  in 
accord  with  the  general  law,  it  having  been  so  brought  into  har- 
mony with  the  law  of  the  rest  of  Europe  by  the  decision  of  the 
House  of  Lords,  in  Bruce  v.  Bruce^  6  Brown's  Par.  Cases,  550, 

•  14  How.  2C6,  267,  268.  istration,  should  be  remitted  to  the 

'  Ennis  e.  Smith,  14  How.  400,  465,  administrator  ofthe  domicile  by  order 

466;  Warren  v.  Hofer,  13  Ind.  167;  of  court  for  distribution.  Ibid.  Green 

McClerry  v.  Matson,  2  Ind.  79.    And  v.  Rugely.  23  Tex.  539 ;  Moultrie  v. 

in  case  of  ancillary  administration,  Hunt,  23  N.  Y.  394,  404,  405. 

the  remaining  property,  after  admin-         *  Ennis  v.  Smith,  14  How.  400. 


DISTEIBUTION    OF    DECEDEXT's    MOVABLES.  201 

566.1  In  the  earlisest  decision  reported  on  the  subject  in  the 
English  law,  Lord  Hardwicke  recognized  the  rule,  that  personal 
estate  in  cases  of  intestacy,  follows  the  person  and  becomes 
distributable  as  provided  by  the  law  of  his  domicile. ^  He  re- 
affirmed the  same  doctrine  a  few  years  afterwards, ^  and  such  has 
been  the  doctrine  of  the  English  courts  ever  since.  The  Supreme 
Court  of  the  United  States,  Wayne,  J,,  in  Ennia  v.  Smith,  say: 
*'  In  the  United  States  the  rule  has  been  fully  recognized,"  and 
that  "  the  rule  prevails,  also,  in  the  ascertainment  of  the  person 
who  is  entitled  to  take  as  heir  or  distributee."  So  it  may  be 
regarded  as  well  settled  law,  that  wherever  a  person  may  die 
intestate,  his  personal  property  is  distributable  wherever  it  may 
be,  according  to  the  law  of  his  domicile. * 

Lands  Descend  According  to  the  Law  of  the  State  wherein 
Situated.  Not  so,  however,  in  regard  to  the  realty.  Lands 
descend,  in  all  cases  of  intestacy,  according  to  the  law  of  the 
State  or  territory  in  which  they  are  situated.'* 

Eemoval  from  the  State.  If  the  family  of  a  decedent  removes 
from  the  State  wherein  he  dies,  and  take  with  them,  or  remove, 
the  personal  property  of  the  deceased,  into  another  State,  before 
administration  is  granted  of  the  estate,  and  administration  be 
had  in  the  State  into  which  the  property  is  thus  removed,  then 
the  rights  of  distribution  thereof  is  in  accordance  with  the  laws 
of  the  place  of  decedent's  domicile,  and  from  which  the  property 
has  been  removed." 

Creditors  seeking  enforcements  of  their  claims  must  do  it 
through  administration  in  the  State  to  which  the  property  is 
removed.' 

Proof  of  the  Law  of  the  Domicile  of  Deceased.  The  law  under 
which  such  right  of  distribution  is  claimed,  or  under  which  any 
other  right  is  claimed,  must  be  produced  and  proven  by  the 

1  Ennis  v.  Smith,  14  How.  400,  434,  kins  is.  Hoi  man,  16  Pet.  25;  Clark  v. 

425.  Graham,  6  Wheat.  577;  Brown  v.  Ed- 

*  Pipon  V.  Pipon,  1  Ambl.  26 ;  Som-  son,  23  Vt.  435 ;  Tardy  v.  Morgan,  8 

erville  t).  Somerville,  5  Ves.  750 ;  Burne  McL.  358;  Blake  ».  Davis,  20  Ohio, 

».  Cole.  1  Ambl.  415.  281;    Nowler  v.  Coit,  1    Ham.  236; 

3  Thorne  v.  Watkins,  2  Ves.  Sr,  35.  Wilkinson  v.  Leland,  2  Pet.  627 ;  Lat- 

1  Ennis  v.  Smith,  14  How.  400,  424,  imer  v.  Union  Pacific  R.  R.  Co.,  43 

425 ;  Olivier  v.  Townes,  14  Martin,  92,  Mo.  105. 

99 ;  Shultz  v.  Pulver,  8  Paige,  182.  «  Green  v.  Rugely,  23  Tex.  539. 

5  U.  S.  V.  Fox,  4  Otto,  315, 320 ;  Wat-  '  Green  v.  Rugely,  28  Tex.  539.        , 


202  JURISDICTION    OF    PERSONAL    PROPERTY. 

party  claiming  the  benefit  tliereof.^  And  if  not  so  produced 
and  proven,  it  will  be  presnnied  by  the  court  to  be  the  same  a» 
the  law  of  the  forum,  or  place  where  the  court  is  held.'  The 
law,  if  statutory,  should  be  proven  in  accordance  with  the  act  of 
Congress  of  May  26th,  1790. » 

V.    The  Locality  or  Situs  op  Monet  Obligations  and  Debts. 

PoUows  the  Owner's  DomicUe.  The  legal  situs,  or  locality, 
of  bonds,  mortgages,  and  debts  generally,  and  all  obligations 
and  undertakings  for  payment  of  money,  and  all  choses  in  ac- 
tion, follows  the  personal  domicile  of  the  owner  thereof,*  and  is 
not  taxable  at  the  residence  or  domicile  of  the  debtor.* 

Exception  as  to  Bank  Notes.  To  this  doctrine  of  legal  situs 
there  is  an  exception  of  circulating  bank  notes. ^ 

In  the  ease  of  Cleveland,  Gainesville  (&  Ashtabula  Railroad 
Company  v.  Pennsylvania,  the  United  States  Supreme  Court 
advert  to  and  disregard  the  several  decisions  of  the  Supreme  Court 
of  Pennsylvania  holding  a  different  doctrine  from  the  above.  An 
effort  was  made  by  law  to  tax  the  bonds,  held  by  non-residents, 
on  the  Cleveland,  PainesvilUe  &  Ashtabula  Kail  road,  and  to  col- 
lect the  tax  by  requiring  the  railroad  com])any  to  withhold  the 
amount  from  dividends  of  such  bondholders  and  to  pay  the  same 
to  the  State.  The  Supreme  Court  of  the  United  States  held,  not 
only  that  the  State  laws  had  no  «3a;^r«-territorial  force,  and  there- 
fore could  not  reach  the  property  of  the  bondholders,  but  also 
that  such  legislation  was  void  as  in  violation  of  the  contract 
between  the  bondholders  and  the  debtor  corporation.  Tliat  court, 
Field,  J.,  say:  "The  bonds  issued  by  the  railroad  company,  in 
this  case,  are  undoubtedly  property,  but  property  in  the  hands 
of  the  holders,  not  property  of  the  obligors.  So  far  as  they  are 
held  by  non-residents  of  the  State,  they  are  property  beyond  the 
jurisdiction  of  the  State."  A  contrary  doctrine  would  give  to 
an  obligation  as  many  places  of  local  situs  as  there  might  be 

'  Atkinson  B.  Atkinson,  15  La.  Ann.  Iowa,    539;    Railroad    Company    v. 

491.  Jackson,  7  Wall.  262;  People  c.  Com- 

«  Green  c.  Rugely,  23  Tex.  539.  missioners,  etc.,  23  N.  Y.  224. 

« 1  U.  S.  Stat  at  Large,  122;  R.  8.  »  Cleveland,  Pain.  &    Asht.  R.  R. 

of  U.  8. 1874,  §  906.  Co.  c.  Pennsylvania,    15   Wall.  800; 

*  Cleveland,   Pain.  &  Aslit.  R.  R.  People  c.  Eastman,  25  Cal.  601 ;  Mur- 

Co.  tJ.  Pennsylvania,   15  WaJl.  300;  ray  C.Charleston, 6  Otto,  432. 

Davenport  ».  Miss.,  etc.,  R.  R.  Co.,  12  *  Supra. 


VOLUNTARY    ASSIGNMENTS.  203 

different  domiciles  in  different  States  of  joint  and  several  obligors 
or  debtors.  1  Nor  does  it  alter  tlie  case  that  tlie  debt  be  secured 
by  mortgage  on  real  estate  situated  in  a  different  State  than  "that 
which  is  the  domicile  of  the  creditor.  The  mortgao-e  is  but  a 
security,  and  confers  no  interest  on  the  creditor  in  the  mortgaged 
property,  but  only  a  right  to  realize  his  debt  thereof  over  others. 
If  such  local  mortgage  could  give  a  situs  to  the  debt  or  bonds 
secured  thereby,  then  in  case  the  security  be  on  lands  in  different 
counties  or  States,  which  of  these  localities  would  become  the 
situs  of  the  debt?  It  could  not  be  at  each.  It  is  with  the  cred- 
itor, or  that  one  of  them,  if  several,  who  holds  possession  of  the 
obligation.     It  follows  the  person. 2     And  a  debt  is  not  property.* 

VI.     Mortgages  of  Personal  Property. 

Mortgages  of  personal  property  made  in  the  State  where  the 
property  is  at  the  time  situated,  and  which  are  there  recorded  as 
required  by  law,  so  as  to  be  valid  where  made,  will  be  held  valid 
in  every  other  State  into  which  the  property  is  afterwards  carried 
or  removed.^  This,  too,  is  the  law,  although  possession  of  the 
property  remains  in  the  mortgageor.^ 

YII.       SUBSCRIITIONS   TO    CAPITAL   StOCK. 

Governed  by  Law  of  the  Company's  Residence.  Subscriptions 
made  in  one  State  to  the  capital  stock  of  a  private  corporation 
which  exists  by  law  in  another  State,  and  there  transacts  and 
carries  on  its  business  and  has  its  principal  offices  or  places  of 
business,  are  contracts  to  be  performed  in  the  latter  State  at  such 
place  of  business,  and  are  governed  and  are  to  be  construed  by 
the  laws  of  that  State.  ^ 

YII  I.       YOLUNTARY    ASSIGNMENTS. 

Of  Personalty,  How  far  Valid  in  Other  States.  Voluntary 
assignments  of  personal  property  for  the  benelit  of  creditors, 

'  Cleveland,  Pain.  &  Aslit.  R.  R.  Fleming,  13  Md.  393;  Wilson  «.  Car- 
Co.  V.  Pennsylvania,  15  Wall.  300.  son,  13  Md.  54;  Shelton  v.  Marshall, 

nua.  16  Tex.  344. 

3  Murray  v.  Charleston,  6  Otto,  433.  '  Jones  v.  Taylor.  30  Vt.  43. 

*  Jones  V.  Taylor,  30  Vt.  43;  Fergu-  «  Penobscott  R.  R.  Co.  v.  Bartlett, 
son  V.  Cliflford,  37  N.  H.  86;  Jeter  v.      13  Gray,  344. 

Fellowes,  33  Penn.  St.  465 ;  Fouke  v.  . 


204     JURISDICTION  OF  PERSONAL  PROPERTY. 

when  valid  by  the  laws  of  the  State  wherein  they  are  made,  are, 
upon  general  principles  of  public  policy  and  comity,  recognized 
in  the  courts  of  other  States  as  obligatory,  whether  such  assign- 
ments  would  have  been  valid  or  not  if  made  in  such  other  of  the 
States  wherein  they  are  sought  to  be  enforced,  except  in  so  far  as 
bona  Jide  transfers,  payments,  liens,  or  other  interests  may  have 
intervened.  1 

Of  Bealty,  Must  Conform  to  the  Lex  Loci  Rei  Sitae.  An 
assignment  to  creditors  made  in  one  State  or  Territory  of  lands 
situated  in  a  different  State,  must  conform  to  the  law  of  the 
place  where  the  lands  are  situated,  in  the  legality  of  its  pur- 
pose. Its  validity  depends  upon  the  lex  loci  rei  sites.  Thus,  an 
assignment  executed  in  the  District  of  Columbia,  in  view  of 
insolvency  of  the  makers,  of  lands  situated  in  the  State  of  Iowa, 
and  designed  to  prefer  certain  creditors,  is  repugnant  to  the  law 
of  Iowa  inhibiting  such  preferences,  and  will,  therefore,  be  held 
of  no  effect  in  Iowa,  and  in  equity  will  be  set  aside.* 

IX.    Where  Personal  Property  is  Taxable. 

Taxable  Property.  Goods  and  chattels,  horses,  cattle,  and 
other  movable  property  of  a  visible  or  tangible  character,  are 
liable  to  taxation  in  the  jurisdiction  or  State  wherein  the  same 
are,  and  are  ordinarily  kept,  irrespective  of  the  residence  or 
domicile  of  the  owner.'  Legal  protection  and  taxation  are 
reciprocal,  so  that  such  personal  property  and  effects  of  a  copo- 
real  nature,  or  that  may  be  handled  and  removed,  as  receives 
the  protection  of  the  law  is  liable  to  be  taxed  by  the  law  where 
it  is  thus  protected.*     But  this  rule  does  not  apply  to  property 

'Brashear   v.    West,    7    Pet,    60S;  »  Hartland  t).  Church, 47 Maine,  169 ; 

Black  V.  Zacharie,  3  How.  483 ;  Mow-  Steere  v.  Walling,  7  R.  I.  317 ;  Mills 

ry  V.  Crocker,  6  Wis.  326;  Whipple  v.  v.  Thornton,  26  111.  300;   People  e. 

Thayer,  16  Pick.  25 ;  Burlock  v.  Tay-  Com'rs  Taxes,  23  N.  Y.  224;  Leonard 

lor,  16  Pick.  335;  Daniels  v.  Willard,  v.  New  Bedford,  16  Gray,  292;  Rie- 

16  Pick.  86 ;   Means  v.  Hapgood,  19  man  v.  Shepard,  27  lud.  288 ;  Black- 

Pick.  105 ;  Holmes  c.  Remsen,  4  John,  stone  Manf.  Co.  v.  Inhabitants    of 

Ch.  460;  Sanderson  v.  Bradford,  10  N.  Blackstone,  13  Gray,  488;  Sangamon 

H.  260 ;  Saunders  v.  Williams,  5  N.  &  Morgan  R  R.  Co.  v.  County  of  Mor- 

H.  213 ;  Smith  v.  Chicago  &  N.  W.  R  gan,  14  111.  163. 

R.  Co.,  23  Wis.  267 ;    Ockerman  v.  *  Bank  of  U.  S.  «.  Mississippi,  12 

Cross,  54  N.  Y.  29.  32;  Atwood  v.  Sm.  »&  M.  456;  DePauw  t>.  New  Al- 

Protection  Ins.  Co..  14  Conn.  555.  bany,  22  Ind.  204;  Egleston«.  Charles- 

« Loving  V.  Pairo,  10  Iowa,  283.  .  ton,  1  Tread.  (S.  0.)  Const  45. 


WHERE  PERSONAL  PROPERTY  IS  TAXABLE.    205 

which  is  in  transit,  or  which  is  temporarily  within  a  State,  as, 
for  instance,  if  a  resident  of  one  State  go  into  another  on  a  visit 
or  business,  traveling  in  his  own  conveyance,  or  carrying  with 
him  personal  effects  for  his  own  use  during  his  temporary  stay, 
or  sent  into  a  State  for  sale,  such  property  is  not  subject  to  taxa- 
tion there,  although  entitled  to  and  receiving  the  temporary  pro- 
tection of  the  law  for  the  time  being,  i 

Intangible  Property.  Interests  of  an  intangible  character  are 
taxable  only  where  the  owner  makes  his  residence,  for  in  con- 
templation of  law  they  accompany  the  person  of  the  owner;  as, 
for  instance,  debts  owing  in  one  State  to  a  person  in  another 
State  are  not  taxable  at  the  place  of  the  debtor's  residence. 2 

Tangible  Personal  Property.  It  is  said  to  be  a  general  prin- 
ciple of  the  law,  that  tangible  personal  property  having  no  fixed 
locality  follows  the  person  of  the  owner  and  is  taxable  at  his  domi- 
cile, provided  there  be  no  express  law  taxing  it  where  it  is  situated, 
if  in  a  different  jurisdiction;  but  this  rule,  we  think,  is  confined 
to  cases  where  the  domicile  of  the  owner  is  in  the  same  State 
and  only  in  a  different  county  or  district,  and  not  to  cases  where 
the  owner  resides  in  a  different  State. ^  In  the  case  here  cited 
of  Sangamon  c&  Morgan  R.  B.  Co.  v.  County  of  Morgan^ 
Justice  Caton,  speaking  of  local  taxation  of  real  estate,  says: 
"  The  same  rule  does  not  apply  to  personal  property,  but  that  it 
follows  the  residence  of  the  owner  is  certainly  true,  and  is  there 
taxable  when  the  owner  resides  within  the  State  and  the  property 
is  only  temporarily  absent;"  and  further  he  gives  the  following 
illustration:  "  Thus,  if  a  man  keeping  a  livery  stable  in  Spring- 
field had  a  team  absent  on  a  journey  in  another  State  at  the  time 
the  assessment  was  made,  he  would  be  bound  to  include  that 
property  in  the  schedule  of  taxable  property,  while  the  rule 
might  be  different  if  he  had  personal  property  permanently 
located  in  another  State  or  another  county."*  The  owner  of  the 
property  in  this  case  was  a  railroad  company;  the  personal  prop- 

'  St.  Louis  1).  Wiggins  Ferry  Com-  Delieselline,  3  McCord,  374;  Murray 

pany,  40  Mo.  580;  Sangamon  «&  Mor-  v.  Charleston,  6  Otto,  432. 

gan  R.  R.  Co.  v.  Morgan  County,  14  *  Sangamon  &  Morgan  R.  R.  Co.  v. 

111.  163 ;  People  v.  Com'rs  of  Taxes,  County  of  Morgan.  14  111.  103 ;  Peo- 

23  N.  Y.  224,  240;  People  «.  Com'rs  pie  v.  Com'rs  of  Taxes,  23  N.  Y.  224, 

of  Taxes,  23  N.  Y.  242.  231. 

2  Augusta  V.  Dunbar,  50  Geo.  387;  *U  111.  165. 
Ante  §  V.  of  this  chapter ;  Hayne  v. 


206  JURISDICTION    OF    PERSONAL    PROPERTY. 

erty  was  kept  in  Springfield,  Sangamon  county,  when  not  in  use; 
wlien  in  use  it  was  in  transit  to  and  through  Morgan  county  and 
back;  the  company  was  an  Illinois  corporation;  and  taxes  were 
levied  in  both  counties  in  the  aggregate  on  the  personal  and  real 
property.  The  Supreme  Court  of  Illinois  held  that  the  realty 
was  only  taxable,  each  part,  in  the  county  where  situated,  the  law 
being  general,  and  that  the  personal  property  was  taxable  only  in 
Sangamon  county,  the  principal  place  of  business  of  the  com- 
pany, and  where  the  property  was  kept  when  not  in  use,  and  was 
not  taxable  at  all  in  Morgan  county,  wherein  it  only  went  on  busi- 
ness trips. 

But,  notwithstanding  it  is  justly  said,  that  personal  propert}-, 
though  it  be  of  a  tangible  nature,  has  no  fixed  situs,  yet  it  is 
not  true  that  it  has  no  situs  at  all.  On  the  contrary,  it  has  an 
actual  situs,  but  not  like  that  of  real  property,  a  fixed  and  per- 
manent  one.  Real  property  being  immovable  its  situs  is  not 
only  fixed,  but  is  permanent;  but  personal  property  being 
movable,  its  situs  is  susceptible  of  change. ^  The  actual  sit^is 
of  each  is  in  the  Slate  where  it  is  situated  or  located,  although 
the  owner  resides  in  a  different  State;  and  each  being  by 
the  law  of  the  locality  protected,  is  in  turn,  by  the  law  of  the 
locality,  liable  to  be  taxed. ^  By  a  fiction  of  law,  however,  of 
universal  import,  if  there  be  no  law  to  the  contrary  at  the  place 
•of  its  actual  situs,  the  situs  of  the  personal  property  is  made  to 
follow  the  person  of  the  owner  and  the  law  of  his  domicile,  if 
in  another  State,  in  all  matters  pertaining  to  its  sale  and  transfer 
by  him,  and  of  descent  and  distribution  in  case  of  his  death.  ^ 

'  People  V.  Com'rs  of  Taxes,  33  N.  Y.  son  v.  Lexington,  14  B.  Mon.  G48. 

224,  226.  '  People  v.  Com'rs  of  Taxes,  23  N. 

^  People  V.  Com'rs  of  Taxes,  supra;  Y.  224,  228, 239 ;  see  mpra  %%  i.-iv.  of 

Finley  v.  Pliiladelphia,  32  Penu.  St.  this  chapter. 
581 ;  Catlin  v.  Hull,  21  Vt.  152;  Jolrn- 


LEGAL    STATUS   AND   JURISDICTION    OF    LANDS.      207 


CHAPTER  XXI. 

LEGAL   STATUS   AND    JURISDICTION   OF   LANDS. 

I.    Jurisdiction  as  to  Lands  is  Local. 
II.    Title  Passes  only  by  the  Lex  Rei  Sit^. 

III.  Courts  of  other  States  may  Act  upon  the  Owner's  Person  to 

Coerce  a  Conveyance. 

IV.  One  State  Owning  Lands  within  Another. 
V.    Government  Lands. 

I.    The  JuEisDicnoN  as  to  Land  is  Local. 

The  jurisdiction  of  courts  over  land  is  local.  Neither  State 
nor  Federal  courts  can  reach  or  confer  title,  nor  sell  under  a 
decree  those  which  are  situated  in  a  different  State  from  that  in 
which  the  court  sits.^ 

In  a  leading  case,  Boyce's  Executors  v,  Grundy^  the  United 
States  circuit  court  for  the  district  of  West  Tennessee  assumed 
to  decree  a  lien  against  and  sale  of  lands  lying  in  the  State  of 
Mississippi,  the  Supreme  Court  of  the  United  States  held  the 
decree  to  be  erroneous  for  want  of  jurisdiction. ^  In  this  case 
the  court  say,  Stoky,  J.:  "Another  objection  is  to  that  part  of 
the  decree  which  creates  a  lien  upon  the  land  in  controversy, 
lying  in  another  State,  and  decrees  a  sale  for  the  discharge  of 
the  lien.  "We  are  of  opinion  that  the  decree  is  erroneous  in  this 
respect,     *     *     *     the  court  had  no  jurisdiction  to  decree  a  sale 

1  Boyce  7>.  Grundy,  9  Pet.  275 ;  Wat-  cial    Bank,    68    111.    348;    Ex   parte 

kins  ».  Holman,  16  Pet.  26.    And  so  Reid.  2  Sneed,  375;   Tardy  v.  Mor- 

in  the  district  as  to  United  States  cir-  gan,   3    McL.   358;    Price    v.    Jolin- 

cuit  courts.    Northern  Ind.  R.  R.  Co.  ston,  1  Ohio  St.  390;    Wilkinson  «. 

■».  Michigan  Cent.  R.  R.  Co.,  15  How.  Leland,  2  Pet.  627 ;  Story's  Couf.  of 

233;    Watts  v.  Waddle,  6   Pet.  400;  Laws,  §g  19,  20,  538,  543;  Rorer  on 

Nowler  v.  Coit,  1  Ohio,  236 ;  Brown  «.  Jud.  &  Ex.  Sale,  2d  ed.  §  58 ;  Brine 

Edson,  23  Vt.  435 ;  Latimer  v.  Union  «.  Ins.  Co.,  6  Otto,  627. 

Pac.  R.  R.  Co.,    43   Mo.   105;    City  « 9  Pet.  275. 
Ins.  Co.  of  Providence  v.  Commer. 


2 OS      LEGAL    STATUS    AND   JURISDICTION   OF   LANDS. 

to  be  made  of  land  lying  in  another  State  by  a  master  acting 
under  its  own  authority." 

In  Watkuie  v.  Ilolman,  just  cited,  the  facts  were  that  Hol- 
man  had  executed  in  his  lifetime,  in  Massachusetts,  a  title  bond 
to  one  Brown,  for  land  situated  in  Alabama,  and  had  died  with- 
out  making  a  conveyance  therefor.  Administration  on  Holman's 
estate  was  granted  in  Massachusetts.  On  petition  of  Brown  the 
probate  court  in  Massachusetts,  by  a  decree,  licensed  or  empow- 
ered the  administratrix  to  make  conveyance  of  the  property  to 
Brown,  wlio  executed  to  Brown  a  deed  in  accordance  with  the 
decree.  This  deed  coming  in  question  was  held  to  be  void  for 
want  of  jurisdiction  of  the  court  authorizing  it  to  be  made.  On 
that  subject  the  Supreme  Court  of  the  United  States,  McLean, 
J.,  assert  the  rule  of  law  in  the  following  terms:  "  That  this  deed 
is  inoperative,  is  clear.  It  was  executed  by  the  administratrix 
under  a  decree  or  order  of  the  Supreme  Court  of  Massachusetts 
and  by  virtue  of  a  statute  of  that  State.  *  *  *  Xndi  no 
principle  is  better  established  than  that  the  disposition  of  real 
estate,  whether  by  deed,  descent,  or  by  any  other  mode,  must  be 
governed  by  the  law  of  the  State  where  the  land  is  situated."  ^ 

II,    Title  Passes  only  by  the  Lex  Rei  Sitje. 

Muniments  of  Title.  It  is  uniformly  held  that  if  the  instru- 
ment be  made  in  one  State  for  the  conveyance  of  realty  situated 
in  another,  or  for  the  creating  or  imposing  any  lien  thereon,  or 
in  any  manner  affecting  title  thereto,  then  under  all  circum- 
stances it  must,  in  substance  and  in  its  execution,  and  also  in  the 
evidences  thereof,  conform  to  the  law  of  the  place  where  the  land 
to  be  aflfected  thereby  is  situated, ^  for  it  is  a  well  settled  prin- 
ciple of  the  law  that  the  jurisdiction  over  real  property  is  local 

>  16  Pet.  26,  57.  &  M.  450;  Loving  v.  Pairo,  10  Iowa, 
«  United  States  «.  Fox,  4  Otto,  815,  282 ;  Jones  v.  Berkshire,  15  Iowa.  248; 
320;  Brine  c.  Insurance  Co.,  6  Otto,  Morton  v.  Smith,  2  Dillon,  316;  Car- 
027;  McCormick  v.  Suliivant,  10  penterp.  Dexter,  8  Wall.513;  McGoon 
Wheat.  192,  202 ;  Morgan  «.  New  Or-  «.  Scales,  9  Wall.  23 ;  Secrist  v.  Green, 
leans  R.R  Co.,  2  Woods.  244;  Darby  3  Wall.  744;  Clark  v.  Graham,  6 
V.  Mayer.  10  Wheat.  465;  Kerr  «.  Wheat.  577;  Steele  v.  Spencer,  1  Pet. 
Moon,  9  Wlieat.  565 ;  United  States  v.  552 ;  Northern  Ind.  R.  R.  Co.  v.  Mich- 
Crosby,  7  Cr.  115 ;  Watts  c.  Waddle,  6  igan  Cent.  R.  R  Co.,  15  How.  233 ; 
Pet  389 ;  Root  t?.  Brotherson,  4  McL.  White  v.  Howard,  46  N.  Y.  144. 
230;  Perry  Manf.  Co.  c.  Brown,  2  W. 


TITLE  PASSES  OXLY  BY  THE  LEX  REI  SIT^. 


209 


and  apjjertains  to  the  State  wherein  the  property  lies,  and  that 
title  thereto  passes  only  by  conformity  to  the  laws  of  such  State.* 
In  tlie  langnage  of  the  United  States  Supreme  Court,  Field,  J.: 
"  The  power  of  the  State  to  regulate  the  tenure  of  real  property^ 
within  her  limits,  and  the  modes  of  its  acquisition  and  transfer, 
and  the  rules  of  its  descent  and  the  extent  to  which  a  testa- 
mentary disposition  of  it  may  be  exercised  by  its  owners,  is 
undoubted. "2 

Record  as  Notice.  If  the  certificates  of  acknowledgment  and 
of  the  official  character  of  the  person  taking  the  acknowledg- 
ment be  not  in  conformity  with  the  law,  or  be  not  evidenced  as 
required  by  the  law  of  the  State  wherein  the  land  is  situated, 
then,  although  the  deed  be  of  record,  yet,  as  a  general  rule,  it 
will  be  invalid  as  against  subsequent  purchases  without  actual 
notice,  as  well  when  the  purchase  is  at  execution  sale  as  when  by 
direct  conveyance  from  the  owner. ^  In  some  States,  however, 
the  record  is  notice,  whether  duly  authenticated  or  not,  and  the 


'  United  States  v.  Fox,  4  Otto,  315, 
320,  321 ;  Brown  v.  Edson,  23  Vt.  435 ; 
Callaway  B.  Doe,  1  Blackf.  372;  Tardy 
V.  Morgan,  3  McL.  358 ;  Wilkinson  v. 
Leland,  2  Pet.  627 ;  Latimer  v.  Union 
Pac.  Pt.  K.  Co.,  43  Mo.  105 ;  Blake  v.  Da- 
vis, 20  Ohio,  281 ;  Nowler  v.  Coit,  1 
Ohio,  519 ;  Price  v.  Johnston,  1  Ohio  St. 
390;  Clark  v.  Graham,  6  Wheat.  577; 
Watkins  v.  Holman,  16  Pet.  26 ;  Darby 
V.  Mayer,  10  Wheat.  465 ;  United  States 
v.  Crosby,  7  Cr.  115;  Kerr  v.  Moon,  9 
Wheat.  565;  Cutter  v.  Davenport,  1 
Pick.  81 ;  Sell  v.  Miller,  11  Ohio  St. 
331 ;  Lucas  v.  Tucker,  17  Ind.  41 ;  God- 
dard  1).  Sawyer,  9  Allen,  78;  Harvey 
V.  Marshall,  9  Md.  194;  Eyre  v.  Storer, 
37  N.  H.  114 ;  Lapham  v.  Olney,  5  R.  I, 
413 ;  Monroe  v.  Douglass,  5  N.  Y.  447 ; 
Livingston  v.  JeflFerson,  1  Brock.  203. 
And  wills,  to  pass  lands,  must  con- 
form to  the  law  of  the  place  where 
the  land  lies.  Lapham  v.  Olney, 
supra;  Story's  Conf.  of  Laws,  §  554. 
So  the  courts  of  one  State  cannot 
order  sale  of  lands  lying  in  another 
State.  Blake  v.  Davis,  20  Ohio,  231 ; 
Henry  v.  Doctor,  9  Ohio,  49 ;  Newell 
14 


V.  Coit,  1  Ohio,  519 ;  Wills  v.  Cowper, 
2  Ohio,  124;  Rorer  on  Jud.  &  Ex. 
Sales,  2d  ed.  §  58 ;  Brine  v.  Ins.  Co., 
6  Otto,  637.  And  a  sale  on  mortgage 
decree,  although  of  a  national  court, 
where  by  the  State  law  there  is  a  right 
to  redeem,  is  to  be  made  subject  to 
such  right.     lb. 

2  United  States  v.  Fox,  4  Otto,  315, 
320.  Such  too  is  the  rule  in  the  United 
States  courts  as  well  as  in  the  State 
courts.    Brine  v.  Ins.  Co.,  6  Otto,  627. 

3  Morton  v.  Smith.  2  Dillon,  516. 
This  rule  holds  good,  too,  in  regard  to 
the  capacity  of  the  grantor  to  convey. 
Whether  the  deed  be  executed  in  the 
one  State  or  the  other,  the  status  of 
the  grantor  as  to  legal  capacity  to 
conve}^  must  be  such  as  is  required 
by  the  law  of  the  State  wherein  the 
lands  lie.  It  is  not  enough  that  he 
be  of  age  by  the  law  of  the  State 
where  he  has  his  domicile  and  makes 
the  conveyance,  he  must  be  of  age  by 
the  law  of  the  place  or  State  where 
the  land  is  situated.  Barnum  v.  Bar. 
num,  43  Md.  251. 


210     LEGAL    STATUS    AND   JURISDICTION    OF    LANDS. 

defect  only  goes  to  the  requirement  of  other  proof  of  the  deed 
when  offered  in  evidence  than  is  afforded  by  such  defective 
acknowledgment  or  certificate  thereof;  and  such  is  the  law  of 
Illinois.  1 

Foreign  Deeds.  When,  by  the  law  of  the  State  wherein  the 
property  is  situated,  deeds  therefor  executed  in  other  States  are 
to  be  acknowledged  and  certified,  or  proven  to  have  been  executed 
in  conformity  to  the  laws  of  such  other  State  where  made,  then 
courts  of  the  United  States,  when  the  same  comes  in  question 
before  them,  will  take  judicial  notice  of  those  laws.' 

Evidence  of  Oflaoial  Character.  Nor  need  there  be  any  evi- 
dence of  the  official  character  of  the  officer  certifying  acknowl- 
edgment or  proof  of  the  conveyance,  unless  the  statute  in  the 
State  where  the  land  lies  requires  it.' 

Foreign  Wills  and  other  Instruments.  So,  in  regard  to  wills 
of  real  estate,  made  in  a  State  other  than  the  one  in  which  the 
lands  arc  situated,  they  must  be  executed  and  evidenced  in  accord- 
ance with  law  of  the  latter  State.'* 

If,  however,  as  is  often  the  case,  the  law  where  the  land  is 
situated  requires  deeds  or  other  instruments  affecting  lands,  when 
executed  at  a  place  out  of  the  State  of  their  locality,  to  be  ex- 
ecuted, acknowledged,  or  proven,  and  certified  in  conformity  to 
the  law  of  the  place  where  executed,  then  the  requirements  of 
the  law  of  that  place  is  in  effect  the  requirements  of  the  law  of 
the  place  where  the  land  is  situated,  and  compliance  therewith  is 
sufficient.'' 

The  rule  that  the  lex  rei  sitcB  governs  in  conveyances  of  real 
property  is  asserted  with  much  force  in  Crusoe  v.  Butler.^  This 
case  involved  the  effect  of  a  will  made,  probated  and  allowed  in 
one  State  of  lands  situated  in  another  State,  and  it  was  held  that 
although  to  carry  title  to  real  estate  in  another  State  than  where 
made  and  probated,  it  must  be  then  probated  according  to  the 

'  Carpenter  e.  Dexter,  8  "Wall.  513.  penter  v.  Dexter.  8  "Wall.  513 ;  Cheever 

«  Carpenter  v.  Dexter,  8  "Wall.  513,  e.  "Wilson.  9  "Wall.  108;  Pennington  c. 

531;  Cheever  c.  "Wilson,  9  "Wall.  108;  Gibson,  16  How.  80. 

Pennington  v.  Gibson,  16  How.  65,  80.  «  36  Miss.  150 ;  McCormick  v.  SuUi- 

»  Carpenter  v.  Dexter,  8  Wall.  513,  vant,  10  "Wheat  202 ;  United  States  «. 

531.  Crosby,  7  Cr.  115;  Kerr  v.  Moon,  9 

*Kerr  e.  Moon,  9  "Wheat  565;  1  Wheat  565;  Wells  v.  Wella,  35  Miss. 

Redfleld  on  Wills,  *  398.  638. 

•  Secrist  o.  Green,  3  Wall.  744;  Car- 


COURTS    MAY    ACT    UPON    THE    PERSON.  211 

law  of  the  latter,  jet,  that  in  Mississippi,  on  presentation  of  a 
•copy  from  where  originally  probated  in  the  State  where  made, 
authenticated  as  a  record,  in  accordance  with  the  act  of  Congress, 
it  may  then  be  admitted  to  probate  in  Mississippi,  and  will  pass 
lands  situated  therein.  ^ 

Executory  Contracts  and  Deeds  made  in  Pursuance  Thereof. 
Sometimes  the  transaction  is  partly  affected  by  both  the  law  of 
the  place  of  contracting  and  the  law  of  the  situs  of  the  property 
contracted  for.  Thus,  if  an  executory  bargain  be  made  in  one 
State  to  purchase  lands  situated  in  another  State,  the  manner  of 
perfecting  the  bargain,  so  far  as  relates  to  the  transfer  or  title 
to  the  land,  is  to  conform  to  the  lex  rei  sitm  of  the  property,  or 
law  of  the  State  where  the  land  is  situated;  but  the  executory 
contract  itself  is  construed  and  controlled,  if  not  otherwise  ex- 
pressed, by  the  law  of  the  place  of  contracting. 2 

OflBcial  Powers  are  Local.  The  acknowledgment  and  certifica- 
tion of  a  deed  taken  and  made  by  an  officer  of  a  State  must  be  taken 
and  certified  within  the  State  under  which  the  officer  holds  his 
authority  to  do  the  act.  He  cannot  receive  or  certify  the  acknowl- 
edo-ment  in  a  dififerent  State  than  the  one  under  the  laws  of  which 
he  holds  his  office  or  has  power  to  act.^  In  a  case  in  Delaware, 
the  court  say:  "  The  taking  the  acknowledgment  of  a  deed  is  an 
official,  perhaps  a  judicial,  act,  and  the  authority  of  the  public 
officer  cannot  extend  beyond  the  limits  of  his  appointment."* 

III.     Courts  of  other  States  may  Act  upon  the  Person  of  the 

Owner. 

Jurisdiction  over  the  Person.  But,  altliough  a  State  court  can- 
not, in  law  or  in  equity,  reach  or  control  the  title  to  lands,  or  the 
possession  of  lands  situated  within  a  different  State,  by  any  di- 
rect action  or  process  against  the  land  itself,  and  cannot  decree 
away  the  title  thereto,  or  authorize  a  commissioner  to  convey  the 
same,  yet  if  a  court  of  general  equity  jurisdiction  obtain  juris- 
diction of  the  person  of  the  owner  of  lands  so  situated,  in  the 
course  of  an  equity  proceeding  involving  a  proper  case  for  coer- 
cion of  the  title  by  a  direct  action  of  the  court,  as  in  cases  of 

'  Crusoe  «.  Butler,  36  Miss.  150;  « Harris  v.  Burton,  4  Harr.  (Del.) 

Wells  V.  Wells,  35  Miss.  638.  66. 

»  Glenn  e.  Thistle,  33  Miss.  42 ;  Beth-  *  Ibid, 
ell  ®.  Bethell,  54  Ind.  428. 


212      LEGAL    STATUS    AND    JURISDICTION    OF    LANDS. 

trust  or  fraud,  or  even  contract,  in  case  the  lands  were  within 
its  jurisdiction,  then  such  equity  court  may  compel  a  conveyance 
by  order  or  decree  acting  directly  on  the  person  of  such  owner, 
and  may  enforce  the  same  with  all  the  jjowers  incident  to  a  court 
of  chancery  in  case  of  disobedience. ^  And  so  it  may  compel  a 
sale  of  realty  lying  partly  out  of  its  jurisdiction  for  the  satisfac- 
tion of  a  trust  or  mortgage,  by  direct  action  against  the  persons 
of  those  concerned,  if  it  get  jurisdiction  of  their  persons.  But 
in  such  cases  the  court  does  not  convey  or  authorize  the  act.  It 
merely  acts  on  the  person,  and  compels  the  exercise  of  powers 
already  by  him  possessed.  It  is  not  like  conferring  power  on  an 
administrator  to  sell  lands  lying  in  another  State.  The  latter 
cannot  be  done.' 

In  the  case  cited  below  of  Muller  v.  Doxoa^  the  circuit  court 
of  the  United  States  for  the  Iowa  district  decreed  a  sale  of  the 
whole  of  a  railroad,  which  lay  part  only  in  Iowa,  and  the  other 
part  in  Missouri,  and  the  proceeding  was  sustained  by  the  United 
States  Supreme  Court.  But  this  was  a  proceeding  in  a  national 
court,  and  the  parties  in  interest  were  in  court,  and  the  case  is 
not  as  one  in  a  State  court,  whose  jurisdiction  over  the  local 
property  is  circumscribed  within  the  boundaries  of  its  territo- 
rial limits;  whereas.  United  States  courts  doubtless  have  power 
to  reach  interests,  however  local,  in  a  chancery  proceeding,  with 
all  the  parties  before  them,  if  enough  of  local  jurisdiction  be 
obtained  as  to  a  part  of  property  involved,  and  which  is  an  en- 
tirety, to  enable  them  to  act  on  the  part  so  situated  within  the 
district  of  the  forum^  especially  so  where,  as  in  the  case  just 
cited,  both  States  are  within  the  same  circuit  of  a  United  States 
court. 

When  such  a  decree  of  a  court  of  one  State  compelling  the 

1  McElrath  ».  Pittsburgh  «S!  Steu-  6  Whart  892;  Lewis  v.  Darling.  16 

benville  R.  R  Co.,  55  Penn.  St.  189 ;  How.  1 ;  Corbett  r.  Nutt,  10  Wall.  464. 

Watkins  ».  Holman,  16  Pet.  26;  Mc-  *  McElrath  -c.  Pittsburgh  «fc  Steu- 

Gregort;.  McGregor,  9  Iowa,  65;  Mas-  benville  R.  R.  Co,  55  Penn.  St.  189; 

sie  t).  Watts,  6  Cr.  148;  Sturdevant  t».  Muller  v.  Bows,  4  Otto,  444,  450,  in 

Pike,  1  Ind.  277 ;  McLean  u.  Lafayette  which  latter  case  the  United  States 

Bank,  3  McL.  622;    Watts  n.  Wad-  Supreme   Court  refer  to  and  recog- 

die,  6  Pet  389 ;  Northern  Ind.  R.  R.  nized  the  correctness   of  the  Penn- 

Co.  t.  Michigan  Cent.  R  R  Co.,  15  sylvania  case  above  cited.    Wood  «. 

How.  233,  243;    White  ».  White,  7  Warner,  15  N.  J.  Eq.  81,  85. 
Gill  «fc  J.  208;  Vaughan  «.  Barclay, 


GOVEEITMENT    LANDS.  213 

conveyance  of  land  situated  in  another  State  comes  in  question 
in  the  courts  of  the  State  wherein  the  land  is  situated,  it  will 
be  entitled  to  full  faith  and  credit  in  these  latter  courts  as  to 
what  is  the  real  or  true  equities  of  the  parties  thereto,  if  juris- 
diction of  the  defendant  in  the  decree  was  obtained  by  the  court 
rendering  the  same;  and  such  decree  may  be  pleaded  as  a  defense 
to  an  action  or  suit,  or  as  a  cause  of  action,  if  applicable,  in  the 
courts  of  such  latter  State.  ^ 

Actions  for  Breach  of  Covenant.  And  actions  for  breach  of  cov- 
enant of  quiet  enjoyment  may  be  maintained  in  the  courts  of  one 
State  when  the  covenant  was  entered  into  in  another  State  in  ref- 
erence to  a  subject  matter  situated  in  the  latter.^  Such  action 
affects  the  person  of  the  defendant  or  covenanter,  and  not  the 
status  or  title  of  the  land. 

TV.     One  State  Owning  Lands  Within  Another. 

Not  Different  froin  Private  Ownership.  The  ownership  of 
lands  by  one  State  within  the  terrritorial  limits  of  another  State 
is  in  nowise  different  from  that  of  the  ownership  of  an  individual 
person.  The  title  and  estate  in  such  case  is  acquired  and  held 
subject  to  all  the  incidents  of  ordinary  private  ownership,  so  far 
as  regards  the  mere  circumstance  of  a  State  being-  the  owner. ^ 
If  a  different  effect  is  claimed  it  must  flow  from  the  intent  and 
purpose  of  the  grant  as  shown  by  the  muniments  of  title. 

Y.     Goveknment  Lands. 

The  doctrine  as  to  local  jurisdiction  of  lands,  and  of  the  title 
passing  only  in  accordance  with  the  lex  loci  rei  sitce  laid  down  in 
the  previous  sections  of  this  chapter,  has  no  application  to  the 
public  lands  of  the  United  States.  Ov^er  these  the  States  and 
local  governments  have  no  control,  and  the  State  laws  do  not 
affect  them  in  any  manner  whatever,  until  the  title  thereto  passes 
out  of  the  national  government  in  such  manner  as  is  provided 
by  national  law.* 

'  Burnley  v.  Stevenson,  24  Ohio  St.  Boggs  v.  Merced  Co.,  14  Cal.279,  375; 

474.  3  Wash.  Real  Prop.  4th  Ed.  188,  §  19. 

**  Jackson  v.  Hanna,  8  Jones  Law,  ••  Turner  v.  American  Baptist  Mis- 

188;    Mott  ■».  Coddington,  1  Robert.  sionary  Union,  5  McLean,  344;  WH- 

267.  cox  V.  Jackson,  13  Pet.  499. 

»Burbank  v.  Fay,  65    N.  Y.  57; 


'214      LEGAL    STATUS    AND    JURISDICTION    OF    LANDS. 

Title  from  National  Government.  Tlie  national  government 
only  can  grant  to  individuals,  States  or  other  grantees  the  right 
and  title  to  the  pnblic  lands  of  the  United  States. ^ 

Congress  has  the  sole  power  of  declaring  the  dignity  and  effect 
of  a  patent  or  grant  of  lands  issued  or  granted  by  the  United 
States,  and  the  character  of  the  title  thereby  vested  in  the  grantee 
to  government  lands  thns  disposed  of,  and  no  State  law  can  lessen 
or  enlarge  the  same;  such  grants  carry  the  fee,  and  are  the  best 
title  known  to  the  law  in  both  national  and  State  courts.  ^ 

Action  at  Law  will  not  Lie  on  Certificate  of  Entry  in  United 
States  Court.  It  is  equally  well  settled  in  the  United  States 
courts  that  no  action  at  law,  for  recovery  of  lands,  will  lie  against 
a  defendant  in  possession,  upon  a  mere  entry  or  certificate  of 
entry  or  purchase  from  the  register  and  receiver  of  the  United 
States  land  office.  These  are  but  evidences  of  an  equity,  and  do 
not  pass  the  legal  title;  and,  though  State  statutes  may  allow 
such  equitable  evidence  as  a  ground  of  recovery  in  State  courts, 
against  a  defendant  showing  no  better  title,  yet  such  statutes  are 
not  a  rule  of  law  or  property  in  courts  of  the  United  States  as 
evidence  of  legal  title.' 

Revocation  of  Patent.  When  the  title  has  passed  from  the 
government  by  the  issuance  and  delivery  of  the  patent  for  lands, 
then  the  power  of  the  political  and  ministerial  departments  of 
government  over  them  ceases,  and  such  patent  cannot  be  revoked 
by  mere  act  of  the  head  of  the  land  department,  or  secretary  of 
a  department.  The  courts  of  law  or  equity  alone  possess  the 
power  of  setting  the  same  aside  for  cause  shown  according  to  the 
course  of  local  practice  and  jurisdiction,  if  in  a  State  court,  or 
of  the  Federal  jurisdiction  and  practice,  if  the  proceeding  be  in 
a  United  States  court.* 

'Mitchel  V.  United  States.  9  Pet.  Wilcox  r.  Jackson,  13  Pet.  499;  Bag- 

712;  Johnson  t.  Mcintosh,  8  Wheat,  nell  v.  Broderick,  13  Pet.  436;  Irvine 

543;  United  States  v.  Fernandez,  10  p.  Marshall,  20  How.  558. 

Pet.  303;  United  States  v.  Rillieux.  «  Hooper  v.  Scheimer,  23  How.  235. 

14  How.  189;  Wilcox  v.  Jackson,  13  *  Moore  v.  Bobbins,  6  Otto.  530;  U. 

Pet.  499 ;    Hooper   r.    Scheimer,  23  S.  r.  Hughes,  11  How.  552,  and  8.  C, 

How.  235.  4  Wall.  232. 

^  Hooper  v.  Scheimer,  23  How.  235 ; 


OEIMIH"AL    JURISDICTION".  215 


CHAPTEK    XXII. 

CRIMINAL  JUKISDICTION. 

I.    Oy  THE  National  Courts. 
II.    Oi?  THE  State  Courts. 

III.  "Writ  op  Error  from  United  States  Supreme  Court  to  State 

Court. 

IV.  Incidents  to  National  Local  Jurisdiction. 

V.    Inter-State  Extradition  op  Fugitives  prom  Justice. 
VI.    Power  op  One  State  to  Enforce  the  Penal  Laws  op  Another 

AND  TO  Punish  Crime  Committed  in  Another. 
VII.    Larceny  at  Common  Law  by  Bringing  Stolen  Property  into  a 

State. 
VIII.    Crimes  Committed  Partly  in  one  State  and  Partly  in  An- 
other. 
IX.    Crimes  Committed  in  a  State  without  the  Offender  Beino 

Therein. 
X.    No  Concurrent  Criminal  Jurisdiction  in  State  and  National 
Courts. 

I.     Of  the  National  Courts. 

The  national  courts,  according  to  best  received  opinions,  have 
no  common  law  criminal  jurisdiction,  or  jurisdiction  over  com- 
mon law  offenses,  as  such;  their  jurisdiction  is  of  statutory 
authority,  and  confined  to  offenses  arising  under  the  Constitution 
and  laws  of  the  United  States. ^ 

But  as  to  the  entire  absence  of  criminal  common  law  juris- 
diction there  has  been  expressed  a  judicial  doubt.^ 

There  can  be  no  doubt,  however,  that  where,  in  the  exercise  of 
their  legitimate  jurisdiction  over  statutory  offenses,  the  principles 
of  the  common  law,  as  existing  in  criminal  jurisprudence  in  the 
original  States,  when  applicable,  will  be  resorted  to  as  rules  of 
right. 

>  U.  S.  V.  Hudson,  7  Cr.  32;  Penn-  How.  518;  U.  S.  v.  Fox.  5  Otto,  670. 
sylvania  v.  Wheeling  Bridge  Co.,  13         ^  U.  S.  v.  Coolidge,  1  Wheat.  415. 


216  CKIMINAL    JUKISDICTION. 

Jurisdiction  of  United  Statos  Courts  of  Offenses  Against  State 
Laws.  The  United  States  courts  cannot  entertain  jurisdiction 
of  State  offenses.  They  can  punisli  only  crimes  against  the 
United  States.  Thus  it  has  been  held  that  Congress  could  not 
give  jurisdiction  to  United  States  courts  to  try  indictments 
found  in  the  State  courts. ^  So,  where  a  person  indicted  in  a 
State  court  for  selling  intoxicating  liquors,  which  by  the  State 
law  is  a  misdemeanor,  notwithstanding  the  fact  that  the  accused 
has  a  license  under  the  revenue  laws  of  the  United  States,  the 
trial  of  such  indictment  cannot  be  removed  into  the  United 
States  courts.' 

The  criminal  jurisdiction  of  the  Federal  courts  being  thus 
limited  to  offenses  against  the  Constitution  and  laws  of  the 
United  States,  it  follows  that  all  other  cases  come  within  the 
jurisdiction  of  the  courts  of  the  States. 

II.     Criminal  Jurisdiction  of  the  State  Courts. 

The  State  courts  have  exclusive  jurisdiction,  within  their 
respective  territorial  limits,  of  all  crimes,  offenses,  misdemeanors 
and  penalties  arising  under  the  rightful  authority  of  the  State 
constitutions  and  laws,  except  such  as  occur  in  the  national  forts, 
arsenals,  and  other  places  belonging  to,  and  under  the  crim- 
inal jurisdiction  of,  the  United  States,  hereinafter  more  fully 
designated. 

Jurisdiction  of  State  Courts  of  Offenses  Against  the  United 
States.  The  same  rule  applies  in  such  cases,  as  we  have  seen 
above,  applies  to  ofienses  against  the  States,  not  being  triable  in 
United  States  courts. 

The  State  tribunals  cannot  punish  crimes  against  the  laws  of 
the  United  States  as  such.  The  same  act  may,  in  some  instances, 
be  an  offense  against  both,  and  it  is  only  as  an  offense  against 
the  State  laws  that  it  can  be  punished  by  the  State. ^ 

III.    Error  from  United  States  Supreme  Court  to  State  Court. 

If,  however,  in  a  prosecution  for  any  violation  of  such  laws,  in 
any  trial  in  a  State  court,  a  defense  be  set  up,  under  and  by 

'  People  V.  Murray,  5  Parker  Cr.  v.  Tuller,  34  Conn.  280;  State  v.  Zu- 

Cases,  577.  lich,  5  Dutch.  409 ;  Matter  of  Hopson, 

»  State  V.  Elder,  54  Maine,  381.  40  Barb.  34;  Ross  v.  State,  55  Geo. 

» People  V.  Kelly,  38  Cal.  145 ;  State  193. 

I 


INCIDENTS    TO    NATIONAL    LOCAL    JURISDICTION.    217 

alleged  authority  of  the  Constitution  or  a  law  of  the  United 
States,  and  the  ruling  be  against  the  validity  of  such  defense, 
then  error  lies  to  the  United  States  Supreme  Court,  from  such 
decision,  if  in  the  highest  State  court  having  jurisdiction  or 
power  to  hear  and  determine  the  same.^ 

lY.     Incidents  to  National  Local  Jukisdiction. 

As  a  sequence  to  local  jurisdiction  of  the  Federal  courts  over 
crimes  committed  in  forts  and  other  places  exclusively  under 
Federal  criminal  jurisdiction,  also  follows  the  power  and  author- 
ity, everywhere  else  in  the  States  necessary  to  the  carrying  of 
the  same  into  effect;  thus,  if  the  offender  flee  from  such  places 
to  some  place  beyond,  the  authority  of  the  Federal  government 
and  courts  extend  to  the  arrest  and  return  of  the  culprit;  so, 
where  the  court  sits  elsewhere,  as  is  usually  the  case,  the  authority 
extends  to  the  transferring  of  the  prisoner  through  the  States  to 
the  place  of  trial;  and,  likewise,  where  the  punishment  is  to  be 
inflicted  outside  of  such  places,  as  in  a  State  prison,  at  some 
other  place,  jurisdiction  extends  to  all  necessary  acts  of  trans- 
portation of  the  convict  to  the  place  of  punishment;  and  where 
the  law,  in  case  of  capital  punishment,  directs  the  body  of  the 
deceased  to  be  delivered  up  to  medical  persons  for  dissection,  a 
like  authority  accompanies  those  in  charge  of  it  elsewhere  than 
at  the  place  of  trial  and  conviction ;  and  so,  where  by  law  the 
rescue  of  such  body  of  the  executed  person  is  made  criminal  by 
the  United  States  laws,  then  the  power  of  the  Federal  govern- 
ment and  courts  extend  wherever  in  any  State  it  may  be  necessary 
for  the  arrest  and  punishment  of  those  offending  against  such 
law;  and  the  law  itself  exists  in  force,  as  a  general  law,  every- 
where alike  throughout  the  States,  so  as  to  render  the  act  criminal 
wherever  committed.^  And  this  general  force  and  authority  of 
the  Federal  laws  and  courts  is  not  the  mere  creatui-e  of  the 
necessity  thereof,  to  carry  out  and  complete  jurisdiction  in  cases 
where  given,  but  results  from  the  constitutional  provision  making 
the  Constitution  itself,  and  the  laws  enacted  in  virtue  thereof, 
the  supreme  law  of  the  land,  everywhere,  at  all  times,  and  in 
all  places.     That  is:  supreme  in  their  own  rightful  sphere  and 

'  Cohens  v.  Virginia,  6  Wheat.  264,  "^  Cohens  v.  Virginia,  6  Wheat,  264, 

414,  415,  416,  431.  425,  426. 


218  INTER-STATE    CRIMINAL    JURISDICTION. 

orbit;  supreme  over  and  in  relation  to  such  things  as  they  rightly 
pertain  to  under  the  national  Constitution,  while  the  State  con- 
stitutions and  laws  have,  at  the  same  time,  equal  force  and  vitality 
in  their  proper  spheres  and  judicial  orbits,  neither  detracting 
from  the  powers  of  the  other,  i 

National  Municipal  Corporations.  But  laws  of  the  national 
Congress,  enacted  for  purposes  of  local  government,  as  for  in- 
stance, the  incorporation  of  a  city,  will  not  be  construed  by  the 
courts,  unless  expressly  so  stated,  to  be  intended  to  operate  or 
confer  power  to  operate,  or  do  acts  beyond  the  territorial  limits 
of  the  corporation;  and  more  especially  such  acts  as  may  be  in 
violation  of  the  penal  or  criminal  laws  of  a  State.  Thus,  the  act 
of  Congress  incorporating  the  city  of  Washington,  and  con- 
ferring on  the  city  authorities  power  to  establish  a  lottery, 
under  certain  circumstances,  by  consent  of  the  President,  is  not 
construed  to  enable  the  city  to  sell  lottery  tickets  in  a  State  the 
laws  of  which  prohibit  lotteries  and  sales  of  lottery  tickets.* 

V.     Inter-State  Extradition  or  Fugitives  from  Justice. 

Among  the  Colonies.  Though  the  extradition  of  criminals  as 
between  certain  of  the  English-American  colonies  prior  to  the 
declaration  of  American  independence,  and  afterwards  under  the 
Articles  of  Confederation  before  the  adoption  of  the  national 
constitution,  are  not  subjects  strictly  per.tinent  to  this  chapter  as 
partaking  of  the  relation  of  the  States  to  each  other,  or  to  the 
national  government  under  the  constitution,  yet  as  matter  of 
inducement  thereto,  and  as  leading  to  a  correct  exposition  of  the 
present  system  of  extradition,  they  are  subjects  proper  to  be 
treated  of,  and  as  pointing  out  the  origin  of  the  same  among 
the  American  communities. 

While  the  North  American -English  communities  were  colo- 
nies of  the  crown,  a  sense  of  mutual  interest  and  security  led  to 
the  making  of  a  compact  among  a  portion  of  them,  lor  the  mutual 
rendition  or  delivery  up  of  persons  fleeing  from  justice  from  any 
one  of  them,  where  charged  with  crime,  and  seeking  refuge  in 
any  one  of  those  colonies  which  were  party  to  the  compact. 
Thus,  as  early  as  the  year  1643,  the  plantations  under  the  gov- 

>  Cohens  v.  Virginia,  6  Wheat.  264,  '  Cohens  v.  Virginia,  6  Wheat.  204, 
414.  427,  428,  429.  447. 


INTER-STATE    EXTEADITIOIT.  219 

ernments  severally  of  Massacliusetts,  New  Plymouth  and  New 
Haven,  in  articles  of  confederation,  pledged  their  faith  to  each 
other,  that  on  escape  of  any  criminal  or  fiigutive  for  any  criminal 
cause,  from  any  one  to  any  other  of  said  colonies,  the  colony 
wherein  he  shall  be  found,  should,  upon  certificate  of  two  magis- 
trates of  the  jurisdiction  from  which  the  escape  occurred,  stating 
that  he  was  a  prisoner  or  an  offender  at  the  time  of  making  the 
escape,  fortlnvith  grant  the  proper  warrant  for  the  apprehension 
of  such  person  and  the  delivering  him  into  the  hands  of  the 
officers,  or  other  persons  in  pursuit  of  him.^ 

Under  the  Articles  of  Confederation.  "When,  after  the  Decla- 
ration of  Independence,  the  thirteen  colonies  entered  into  articles 
of  confederation,  they  included  therein  a  similar  but  more  explicit 
provision  for  extradition  or  rendering  up  mutually  to  each  other 
of  persons  fleeing  from  justice,  in  any  State  into  another  of  the 
States,  worded  as  follows:  "  If  any  person  guilty  of  or  charged 
with  treason,  felony,  or  other  high  misdemeanor,  shall  flee  from 
justice,  and  be  found  in  any  other  of  the  United  States,  he  shall, 
upon  demand  of  the  governor  or  executive  power  of  the  State 
from  which  he  fled,  be  delivered  up  and  removed  to  the  State 
having  jurisdiction  of  his  offense."  ^ 

Under  the  Constitution.  Afterwards,  upon  the  adoption  of  the 
Constitution  of  the  United  States,  the  same  provision  was  liter- 
ally included  therein,  that  had  existed  in  the  articles  of  confed- 
eration, with  the  exception  that  for  the  words  '■'■  high  Tiiisde- 
meanor^'^  was  substituted  the  word  ^'  crime  ;"  and  it  is  held  by 
the  United  States  Supreme  Court,  that  the  word  "  crime  "  thus 
substituted  includes  every  offense  made  punishable  by  the  law  of 
the  State  in  which  it  is  committed.  ^  It  will  be  seen  that  in  the 
original  compact  of  certain  of  the  colonies  above  referred  to,  the 
word  "  treason  "  was  not  used,  inasmuch  as  these  colonies  not 
being  then  sovereignties,  treason  could  not  be  committed  against 
them;*  but  that  in  the  Constitution  of  the  United  States,  and  in 
the  articles  of  confederation,  that  word  is  used,  as  the  colonies 
had  then  become  independent  States,  and  the  crime  of  treason 

'  Winthrop's  History  of  Massachu-  ^Articlesof  Confederation,  Art.  IV.; 

setts,  Vol.  II.  121, 126 ;   Kentucky  v.  Kentucky  v.  Dennison,  Governor  of 

Dennison,  Governor  of  Ohio,  24  How.  Ohio,  24  How.  60,  101,  102. 

66,  100.  101 ;  Commonwealth  v.  Dea-  ^  n^id. 

con,  10  S.  &  R.  129.  *  Ibid. 


220  INTER-STATE    CRI3IINAL    JURISDICTION. 

could  therefore  be  committed  against  them  as  snch;  and  also,  for 
the  purpose  of  negativing  the  idea,  that  this  extraditionarj  duty 
extended  no  further  than  the  previous  ordinary  comity  between 
sovereigns,  under  which  the  more  general  practice  liad  been  not 
to  deliver  up  i)oUtical  criminals,  or  persons  charged  only  with 
a  political  oflfense,  and  that  therefore  in  order  to  obviate  all  doubt 
upon  the  subject,  on  forming  these  closer  relations,  first  of  con- 
federation, and  afterwards,  of  one  common  national  constitution, 
the  word  treason  was  used.  ^ 

By  virtue,  then,  of  this  provision  of  the  national  constitution, 
it  becomes  the  duty  of  a  State  to  deliver  over  to  another  State  a 
person  fleeing  from  justice  from  one  of  such  States  into  or  found 
within  such  other,  who  is  charged  with  any  offense  whatever 
made  punishable  by  law  in  the  State  from  which  such  person 
shall  liave  fied.^  But  the  Supreme  Court  of  the  United  States 
hold  this  duty  to  be  but  a  moral  one,  not  enforcible  by  any 
authority  of  law,  and  resting  solely  on  the  sense  of  patriotism 
and  fidelity  of  the  person  charged  with  the  performance  thereof 
to  the  solemn  compact  of  the  constitution.' 

Duty  to  Surrender.  The  insertion  of  the  foregoing  provision 
into  the  Constitution  of  the  United  States,  renders  absolute  the 
duty  of  rendering  up  criminals  by  one  State  to  another,  which 
before  the  adoption  of  the  country,  was  entirely  a  matter  of 
comity,  optional  with  the  State  or  States  of  which  the  require- 
ment was  made;  for  without  such  a  clause,  it  is  held  in  the 
American  courts  to  be  mere  matter  of  discretion.* 


'  Articles  of  Confederation,  Art.  IV. ;  criminals  on  the  part  of  the  States,  it 

Kentucky  v.  Dennison,  Governor  of  •would  seem  from  the  use  of  the  word 

Ohio,  24  How.  66,  101,  103.  "  shall,"  in  the  clause  of  the  Consti- 

'  Ibid.  tution  here  referred  to,  is  compulsory. 

'  Ibid.  And  yet,  there  being  no  power  lodged 

*  Kentucky  v.  Dennison,  Governor  in  the  United  States  to  compel  the 

of  Ohio,  24  How.  CO;  Prigg  v.  Com-  execution  by  the  States  of  that  clause, 

monwealth,   16  Pet.  539;  Holmes  ».  the  duty  seems  to  be  one  entirely  dis- 

Jennison,  14  Pet.  540;  Commonwealth  cretional,  so  far  as  the  United  States 

V.  Green,  17  Mass.  514-548 ;  Common-  laws  are  concerned.    But  some  of  the 

wealth  c.  Deacon,  10  S.&R.  125;  Case  individual  States    have  made    local 

of  Jose  Ferreira  dos  Santos,  2  Brock,  regulations,  which,  in  effect,  make 

493;  United  States  v.  Davis,  2  Sumn.  the  constitutional  provision  binding 

483,  486;  Compton  v.  Wilder,  7  Am.  and  free  from  all    discretion   upon 

LawRecord,  212 ;  Taylor  jj.Taintor,  16  their  officers  who  are  charged  with 

Wall.  366.    The  duty  of  surrendering  the  execution  of  the  same. 


IITTER-STATE    EXTRADITION.  221 

Nature  of  the  Offense  for  Which  Extradition  is  Asked.  As 
to  the  nature  of  the  offenses  referred  to  in  the  4:th  Article  of  the 
Constitution  above  cited,  it  is  held  that  all  offenses  made  punish- 
able by  law  in  tiie  State  where  the  act  charged  is  committed, 
come  within  the  meaning  of  the  words  "  treason,  felony  or  other 
crime,"  and  therefore  that  extradition  of  fugitives  by  force  of 
said  provision  is  obligatory  upon  the  State  to  which  they  have 
fled,  for  any  crime  made  punishable  by  the  laws  of  the  State 
making  the  demand. ^ 

The  rendering  up  the  fugitive,  when  a  case  is  made  out  filling 
the  exigency  of  the  law,  or  constitutional  provisions  above 
referred  to,  leaves  no  discretion  with  the  State  of  which  the 
demand  is  made  as  to  the  nature  of  the  crime.  ^  The  requisi- 
tion, or  proceeding  upon  which  the  surrender  is  sought,  must 
show  that  the  alleged  crime  was  committed  within  the  jurisdic- 
tion of  the  State  making  the  application.  ^  So,  too,  the  charge 
must  be  positive,  and  not  merely  upon  information,  or  inform- 
ation, and  belief.  4 

U.  S.  Courts  Have  Power  to  Examine  Into  Charge.  The 
courts  of  the  United  States  have  full  power  and  jurisdiction  over 
cases  of  this  nature,  and  may  examine  into  the  sufficiency  of  the 
proceedings,  and  discharge  the  prisoner  or  remand  him  to  the 
custody  from  whence  taken,  as  the  principles  of  the  law  may 
require;  for  the  proceeding  on  which  the  arrest  is  ordered  is 
predicated  upon  the  Constitution  and  authority  of  the  United 
States;  and  this,  too,  notwithstanding  the  State  in  which  the 
order  of  arrest  is  made  has  legislated  upon  the  same  subject.  ^ 

What  Must  be  Shown  to  Justify  the  Delivery  of  the  Fugitive. 
To  justify  the  arrest  and  delivery  of  a  person  to  the  authorities 
of  another  State  by  the  authorities  of  the  State  wherein  he  may 
be  found,  as  a  supposed  criminal  and  fugitive  from  justice  in 
such  other  State,  it  is  necessary  under  the  Federal  Constitution 
and  laws  that  the  charge  of  criminality  shall  have  been  made  in 

'  Kentucky  v.  Dennison,  Governor  Law  of  Habeas  Corpus,  2d  Ed.  601. 

of  Ohio,  24  How.  66;  In  re  Yoorhees,  ^  Kentucky  t;.  Dennison,  Governor 

32  N.  J.  Law,  141 ;    In  re  Hughes,  of  Ohio,  24  How.  66. 

Phillips'  (N.  C.)  Law,  57 ;  In  re  Hej'-  ^  ^^  parte  Smith,  3  McL.  131. 

ward,  1  Sandf.  701 ;  In  re  Fetter,  3  *  Ibid. 

Tab.  Sll;  In  re  Greenough.  31  Vt  279 ;  » Ibid. 
Brown's  Case,  112  Mass.  409;  Hurd's 


222  INTER-STATE    CRIMINAL    JURISDICTION. 

the  State  demanding  him  to  8orae  court,  magistrate  or  officer,  in 
form  of  an  indictment,  information,  affidavit,  or  other  accu&atiou 
known  to  the  laws  of  such  State,  and  charging  the  offense  to 
Iiave  been  committed  therein. ^  An  arrest  not  based  on  sucli 
charge  is  unauthorized,  and  the  court  before  whicli  it  is  made,  or 
the  prisoner  is  brought,  is  without  jurisdiction  thereof,  and  the 
proceedings  are  void.^ 

It  follows,  therefore,  that  as  a  court  before  whom  a  person  thus 
arrested  without  authority  is  brought,  is  without  jurisdiction 
over  the  person  of  the  accused,  that  a  bond  taken  for  his  appear- 
ance at  a  subsequent  day  before  such  court  to  answer  the  charge, 
and  which  is  given  as  a  means  of  obtaining  a  discharge  from 
such  illegal  restraint,  is  void.'  In  the  case  of  State  v.  Hufford 
the  arrest  was  made  on  a  charge  preferred  in  Iowa,  on  affidavit, 
without  any  charge  or  demand  from  the  other  State,  and  the  pro- 
ceeding was  held  void. 

Object  of  Our  Extradition  Law.  Its  Perversion  Cannot  be 
Used  for  Civil  Obligations.  The  provision  of  the  United  States 
Constitution,  article  lY.,  for  the  extradition  of  persons  charged 
with  treason,  felony,  or  other  crime,  who  flee  from  justice  and 
are  found  in  another  State,  is  designed  to  enable  a  State  to  vindi- 
cate its  sovereignty  and  laws,  by  trial  and  punishment  in  its  own 
forum,  of  those  who  violate  the  same,  and  is  designed  for  no 
other  purpose.  It  is  in  nowise  intended  for  the  benefit  of  private 
persons,  or  for  enforcement  by  them,  and  may  not  be  resorted  to 
for  the  purpose  of  bringing  a  debtor  of  the  prosecutor  within  a 
State  for  the  purpose  of  obtaining  jurisdiction  of  his  person  in 
a  civil  suit,  or  to  coerce  out  of  him  surety  for  a  debt.  The  law 
will  not  tolerate  so  oppressive  and  corrupt  a  proceeding  and  abuse 
of  process,  and  any  contract  or  obligation  made  by  a  person 
under  an  arrest  thus  procured,  or  with  his  friends,  for  the  pur- 
pose of  effecting  his  release,  will  be  held  null  and  void.* 

•State  V.   Hufford,  28  Iowa,  391;  »  State  t.  Hufford,  28  Iowa,  391, 396. 

People  V.  Brady,  56  N.  Y.  182;  Ez  *  Fay  v.  Oatley,  6  Wis.  42;  Carpen- 

parte  Clark,  9  "VVend.  219;   Kurd's  ter  c.  Spooner,  2  Sandf.  717;  Snelling 

Law  of  Habeas  Corpus,  2d  Ed.  212,  t.  Watrous,  3  Paige,  314;   Benning- 

610.  hoff ».  Oswell,  37  How.  Pr.  235.    But 

^  State  ».  Hufford,  28  Iowa,  391 ;  J^a;  parties  who   are   not    concerned  in 

parte  Smith,  3  McL.  121 :  Ex  parte  bringing  the  so-called  fugitive  back, 

Clark,  9  "Wend.  212 ;  In  re  Heyward,  1  it  has  been  held  would  not  be  pre- 

Sandf.  701.  eluded  from  suing  or  capiasing,  even 


INTER-STATE    EXTKADITIOU".  223 

Demand  of  the  Governor  of  the  State  of  the  Fugitive.  This 
process  of  extradition  by  a  State,  of  a  person  found  as  a  fugitive 
therein,  by  delivery  over  to  the  authorities  of  another  State,  is 
only  authorized  upon  demand  of  the  executive  of  such  other 
State,  and  where  a  criminal  charge  is  actually  pending  against  an 
alleged  fugitive  in  the  State  making  tlie  demand.  ^  In  such  cases, 
the  proceeding  in  the  State  making  the  demand  must  be  such,  as 
is  usual  in  similar  charges  against  residents  thereof,  and  the  war- 
rant, indictment,  and  demand,  must  specify  the  nature  of  the 
crime  charged.  ^ 

May  be  Surrendered  for  High  Misdemeanors.  High  misde- 
meanors are  held  to  be  within  the  meaning  of  the  word  "  crime" 
as  used  upon  the  subject  of  surrendering  fugitives  from  justice, 
in  the  Constitution  of  the  United  States.  ^ 

Copy  of  the  Indictment  need  not  accompany  Demand.  It  is 
not  necessary  that  a  copy  of  the  indictment  found  in  the  State 
making  the  demand,  shall  accompany  the  writ  of  the  executive  or 
governor,  authorizing  the  arrest  and  delivery  over  of  the  fugitive; 
it  is  sufficient  if  referred  to  in  the  M-rit.* 

Suflacieney  of  the  Charge,  may  be  examined  into  on  Habeas 
Corpus.  The  judicial  power  may  be  interposed  by  writ  of  habeas 
corpus  in  cases  of  arrests  for  extradition,  and  the  sufficiency  of 
the  charges  and  regularity  of  the  proceedings  be  examined  into.** 

Sufficiency  of  Afiadavit.  Fugitive  from  Justice.  An  affidavit 
of  a  person  of  one  State  that  he  was  "  shot  with  intent  to  kill,  * 
^  *  and  that  he  believes,  and  has  good  reason  to  believe  from 
evidence  now  in  his  possession,  that  a  certain  person  therein  named 
was  accessory  before  the  fact  of  the  intended  murder;  and  that  the 
said  person  is  a  citizen  and  resident  of  another  State,"  on  the  gov- 
ernor of  which  a  requisition  is  made  for  delivery  of  the  implicated 
person,  is  not  sufficient  to  sustain  a  demand  for  tlie  arrest  and 

though  the  fugitive  was  brought  baclt  450 ;  People  v.  Brady,  56  N.  Y.  182. 

by  trick  or  device.     Adriance  v.  La-  ^jyiorton  ^.  Skiuucr,  48  Ind.  123. 

grave,  59  N.  Y.  110.    See,  however,  ^  Nichols  «.  Cornelius,  7  Ind.  611 ; 

Wanzer  v.  Bright,  52  111.  35.  Robinson  v.  Flanders,  29  Ind.  10. 

1  Ex 'parte  White,  49  Cal.  434;  Com-  ^  People  v.  Brady,  56  N.  Y.  182 ;  In 

monwealth  v.  Deacon,  10  S.  &  R.  125;  re  3Ianchester,  5  Cal.  237;  Ex  -parte 

People  V.  Brady,  56  N.  Y.  182.  Thornton,  9  Tex.  635 ;  Lagrave's  Case, 

''Ex  parte  Culbreth,  49  Cal.  436;  14   Ab.  Pr.  (n.  s.)  333;   Williams  t. 

Commonwealth  t.  Deacon,  10  S.  «&  Bacou,  10  Wend.  636. 
R.  125;    Ex  parte   Pfltzer,  28    Ind. 


224  INTER-STATE    CRIMINAL    JURISDICTION. 

extradition  of  the  alleged  criminal,  since  the  same  does  not  fulfill 
the  requirements  of  the  law  in  showing  or  charging  that  the 
supposed  culjjrit  has  fled  from  justice  in  one  State  and  has  taken 
refuge  or  is  found  in  the  other.  ^ 

In  this  case,  the  court  say:  "It  is  the  duty  of  the  State  of 
Illinois  to  make  it  criminal  in  one  of  its  citizens  to  aid,  al)et, 
counsel,  or  advise,  any  person  to  commit  a  crime  in  her  sister 
State.  Any  one  violating  the  law  would  be  amenable  to  the  laws 
of  Illinois  executed  by  its  own  tribunals.  Those  of  Misnouri 
could  have  no  agency  in  his  conviction  and  punishment.  But  if 
he  shall  go  into  Missouri,  he  owes  obedience  to  her  laws,  and  is 
liable  before  her  courts  to  be  tried  and  punished  for  any  crime 
he  may  commit  there;  and  a  plea  that  he  was  a  citizen  of  another 
State  would  not  avail  him.  If  he  escapes,  he  may  be  surrendered 
to  Missouri  for  trial.  But  when  the  oflfense  is  perpetrated  in 
Illinois,  the  only  right  of  Missouri  is  to  insist  that  Illinois  com- 
pel her  citizens  to  forbear  to  annoy  her.  This  she  has  a  right  to 
expect.  For  the  neglect  of  it,  nations  go  to  war,  and  violate 
territory." 

In  the  matter  of  Manchester,  who  was  demanded  of  the  gov- 
ernor of  California  by  the  governor  of  Ohio,  as  a  fugitive  from 
justice,  the  court  of  California  held  that  tlie  governor  making 
the  demand,  is  the  proper  judge  of  the  authenticity  of  the  doc- 
ument relied  on,  and  that  behind  his  judgment  the  courts  of 
California  could  not  go;  and  that  although  the  papers  did  not  in 
words  charge  that  the  prisoner  was  a  ^^  fugitive  from  justice^'' 
that  still  the  allegation  being  that  he  committed  the  crime  and 
secretly  fled,  is  sufticient  from  which  to  deduce  that  conclusion.* 

Fugitive  being  in  Custody  under  Local  Process  when  delivered 
up.  However  formal  and  legal  the  requisition  or  demand  may 
be,  when  made  by  a  governor  of  a  State  upon  the  governor  of 
another  State  for  the  extradition  of  a  person  found  therein,  yet 
if  the  person  demanded  be  in  actual  custody  of  the  officers  of 
the  law,  on  either  criminal  or  competent  civil  process,  to  answer 
some  oflfense  or  action  where  so  in  custody,  he  cannot  be  delivered 
up  until  the  demands  of  justice  and  law  are  satisfied  or  exhausted 
under  which  he  is  so  held.  The  State  of  which  the  demand  is 
made  is  not  bound  to  postpone  its  own  legal  claims  to  dispose  of 

J  Ex  parte  Smith,  3  McL.  121,  138,  »  5  Cal.  237. 

139 ;  Jones  v.  Leunard,  13  West  Jur.  15. 


IIv'TER-STATE    EXTRADITION.  225 

the  person  of  the  oflfender,  or  of  its  own  laws  to  those  of  the 
other;  but,  on  the  contrary,  only  after  the  same  are  satisfied. 
Tlien  the  party  should  be  delivered  iip.i 

Fugitive  Returned  under  an  Invalid  Process  may  be  tried  — 
when  not.  In  Pennsylvania  it  is  held  that  if  a  prisoner  who 
is  under  indictment  for  a  crime  in  that  State  and  flees  to  another, 
is  arrested  and  returned  without  lawful  authority,  yet  that  will 
not  be  ground  for  his  discharge  without  trial,  if  the  governor  of 
the  State  from  which  he  is  thus  illegally  taken  does  not  demand 
his  discharge.  2 

Extradition  among  the  States  based  exclusively  on  the  Consti- 
tution—not  upon  Comity.  The  power  of  the  several  States  to 
render  up  alleged  criminals,  found  within  their  limits  to  the 
authorities  of  each  other,  as  matter  of  mere  comity  as  practiced 
sometimes  between  States  entirely  foreign  to  each  other  does  not 
exist,  as  we  conceive,  under  our  National  Constitution.  By  sec- 
tion 2  of  article  lY.  of  that  instrument,  it  is  provided  that  "  the 
citizens  of  each  State  shall  be  entitled  to  all  privileges  and  immu- 
nities of  citizens  of  the  several  States."  Thus  a  citizen  of  one 
State  has  not  only  a  right  to  change  his  residence  into  another 
State,  but  also  a  right  to  become  a  citizen  of  the  latter,  and  there 
remain,?  as  against  all  natural  right  of  such  State  to  extradite 
him,  banish  him,  or  deliver  him  over  to  any  other  actual  or  pre- 
tended power,  and  it  results,  therefore,  that  the  only  authority  as 
between  the  American  States,  for  the  extradition  of  criminals,  is 
that  provided  by  the  National  Constitution,  and  if  the  proceeding 
be  not  in  conformity  thereto,  extradition  cannot  be  enforced.* 
For  a  citizen  of  a  State  is  a  citizen  of  the  United  States,"  and  a 
State  cannot  expel  a  citizen  of  the  United  States  from  its  terri- 
tory or  extradite  him  therefrom  except  in  the  manner  provided 
by  the  National  Constitution. 

As  Between  a  State  and  a  Foreign  Power.  A  State  has  no  power 
to  grant,  or  cause,  the  extradition  of  one  of  its  citizens,  on  de- 
mand of  a  foreign  power,  or  any  governnient  not  being  one  of 

J  In  re  Briscoe,  51  How.  Pr.  422.  1  Sandf.  701 ;   Fay  v.  Oatley,  6  Wis, 

«  Dows'  Case,  18  Penp.  St.  37.  45;  Ex  parte  Wliite,  49  Cal.  433 ;  Ex 

»  Corfleld  v.  Coryell,  4  Wash.  C.  C.  parte  Culbretb,  49  Cal.  435 ;  People  v. 

371.  Brady,  56  N.  Y.  182 ;  Ex  parte  Thorn 

*  Ex  parte  Smith,  3  McL.  121 ;  State  ton,  9  Tex,  635. 

V.  Hufford,  28  Iowa,  391 ;  Ex  parte  »  Gassies  v.  Ballon,  6  Pet.  761. 

Clark,  9  Wend.  212;  In  re  Hey  ward, 
15 


22C  INTER-STATE    CRIMINAL    JURISDICTION. 

the  States  or  Territories  of  the  American  Union.  The  United 
States  alone  possess  that  power.  Under  the  Constitution  the 
intorconrse  with  foreign  powers  is  vested  exclusively  in  the  United 
States.  1  Therefore,  State  statutes  authorizing  such  extradition 
are  unconstitutional  and  void.* 

For  a  State  to  be  able  to  exercise  this  power  of  extradition 
would  be,  in  effect,  to  enable  one  alone  of  the  States  to  surrender 
up  to  a  foreign  power  citizens  of  the  United  States;  for  citizens 
of  the  States  are  citizens  cf  the  United  States;'  not  even  the 
highest  officer  of  the  government  would  be  exempt  from  sub- 
jection to  such  authority,  if  found  within  the  limits  of  any  one 
of  the  respective  States,  whether  justly  accused  or  not,  thereby 
imperiling  the  operation,  if  not  the  existence,  of  national 
authority. 

The  case  cited  from  New  York  originated  in  an  application 
of  the  kingdom  of  Belgium,  through  its  minister,  for  the  extra- 
dition of  a  person  charged,  in  said  kingdom,  as  alleged,  with  the 
crimes  of  murder,  robbery  and  arson.  The  governor  of  New 
York,  upon  whom  the  request  was  made,  issued  his  warrant  and 
caused  the  arrest  to  be  made,  with  intent  to  deliver  up  to  the 
agent  of  the  Belgian  government,  in  pursuance  of  an  act  of  the 
legislature  of  the  State.  The  case  being  brought  before  the  courts 
upon  Jiaheas  corpus,  it  was  held  by  the  court,  and  the  ruling  was 
affirmed  by  the  court  of  apjjeals,  that  the  act  of  assembly  was 
unconstitutional,  as  a  violation  of  the  Constitution  of  the  United 
States,  which  places  in  Congress  and  the  national  government 
the  exclusive  power  as  to  intercourse  and  treaties  with  foreign 
nations;  and  that,  tlierefore,  the  warrant  of  the  governor  was 
void.  The  constitutionality  of  the  State  law,  and  power  of  the 
governor  to  extradite  the  prisoner,  were  attempted  to  be  sus- 
tained as  of  those  powers  which,  though  conferred  upon 
Congress,  yet  a  State  may  exercise  until  Congress  has  acted 
upon  the  subject,  and  that  as  the  United  States  had  not  by  treaty 
with  Belgium  regulated  or  assumed  the  duty  of  extraditing 
fugitives  from  that  kingdom,  from  justice,  the  State  of  New- 
York  had  power  to  act  upon  the  subject.  But  the  court  utterly 
ignored  the  power  as  a^jpurtenant  to  a  State,  and  held  that  the 

'  People  t>.  Curtis,  50  N.  Y.  321 ;  »  Cooper  v.  Galbraith,  3  Wash.  C. 
Holmes  «.  Jennison,  14  Pet.  540.  C.  546 ;  Read  p.  Bertrand,  4  Wash.  C. 

« People  V.  Curtis,  50  N.  Y.  331.  C.  556. 


POWER    TO    EI^FORCE    PE^^AL    LAWS.  227 

exclusive  power  is  in  the  national  government.  The  court  of 
appeals,  Church,  C.  J.,  saj:  "The  whole  subject  of  foreign  in- 
tercourse is  committed  to  the  Federal  government.  Indeed,  this 
was  one  of  the  pi-incipal  purposes  of  the  Union.  As  to  foreign 
countries,  the  States,  as  such,  are  unknown.  *  *  *  If  one 
State  may,  all  the  States  may  make  these  arrangements,  which 
arrangements  may  differ  from  each  other;  and  the  same  States 
may  make  different  arrangements  with  each  foreign  nation.  The 
embarrassment  which  such  an  exercise  of  power  by  the  States 
would  produce  to  the  general  government  in  its  foreign  policy  is 
obvious.  *  *  *  It  cannot  be  said,  from  the  absence  of  a 
treaty  with  any  country,  or  with  all  countries,  that  the  power  is 
dormant.  It  may  be  as  much  exercised  by  refusing,  as  by 
making  a  treaty." ^ 

Right  of  a  State  to  Punish  for  Other  Crime  than  that  Alleged  as 
Ground  for  Extradition.  Whatever  the  obligation  of  good  faith 
may  require  as  between  foreign  nations,  as  to  holding  prisoners 
extradited  under  treaty  stipulations  for  such  offense  only  as  is 
specified  in  the  application  for  extradition, ^  yet  no  such  obliga- 
tion rests  upon  the  American  States,  as  between  themselves,  in 
regard  to  prisoners  extradited  from  one  of  these  States  to  the 
other,  under  the  provisions  of  the  national  Constitution,  and  the 
act  of  Congress 3  for  carrying  the  same  into  effect,  and  State 
courts  have  a  right  to  hold  and  try  persons,  thus  extradited  from 
one  to  another  of  them  for  other  crimes  than  that  upon  which 
the  extradition  proceedings  are  based,  if  allegations  of  other 
crimes  against  the  State  are  preferred  against  the  prisoner.* 

YI.     Power  of  One  State  to  Enforce  the  Penal  Laws  of 
Another  and  to  Punish  Crimes  Committed  in  Another. 

Offenses  are  Local.  One  State  or  sovereignty  cannot  enforce 
the  penal  or  criminal  laws  of  another,  or  punish  crimes  or 
offenses  committed  in  and  against  another  State  or  sovereign ty.^ 

1  50  N.  Y.  336,  327.  State  v.  Knight,  Taylor's,  (N.  C.)  65 ; 

*  In  re  Noyes,  17  Alb.  Law  Jour.  Scoville   v.  Canfield,   14  John.  3.38 ; 

407.  Slack  v.  Gibbs,  14  Yt.  357 ;  Coramon- 

3  Act  of  13th  of  February,  1793,  Re-  wealth  v.  Green,  17  Mass.  515,548; 

vised  Stat.  U.  S.  §  5379.  Simpson  v.  The  State,  4  Humph.  456; 

■*  In  re  Noyes,  supra.  State  v.  Carter,  3  Dutch.  499 ;  Story's 

5  The  Antelope,  10  Wheat.  66, 133;  Conf.  of  Laws,  §§  630-623. 


228  INTER-STATE    CKIMIXAL    JURISDICTION. 

Such  laws  have  no  extra-territorial  force.  If  it  were  ever  a 
subject  of  doubt  elsewhere,  yet  as  between  the  American  States 
all  doubts  are  put  at  rest,  and  a  contrary  intention  is  shown  by 
Section  2  of  Article  IV.  of  the  Constitution,  which  provides  that 
"  a  person  charged  in  any  State  with  treason,  felony,  or  other 
crime,  who  shall  flee  from  justice,  and  be  found  in  another  State, 
shall,  on  demand  of  the  executive  authority  of  the  State  from 
whicli  he  fled,  be  delivered  u]>,  to  be  removed  to  the  State  having 
jurisdiction  of  the  crime."  This  provision  clearly  presupposes 
that  criminals  are  to  be  tried  and  punished  in  the  State  wherein 
they  commit  ofibuses;  and,  upon  the  well  settled  principle  that 
the  including  of  one  is  the  exclusion  of  the  other ^^  shows  with 
additional  clearness  that  jurisdiction  was  regarded  as  apper- 
taining exclusively  to  the  State  whose  laws  should  be  oflfended 
against,  and  wherein  the  crime  should  be  committed:  hence  the 
words  "  to  be  removed  to  the  State  having  jurisdiction  of  the 
crime."  !Nor  is  it  supposable  that  a  people  who  had,  in  their 
bill  of  rights,  so  recently  made  complaint  against  the  crown  of 
Great  Britain,  of  their  subjection  to  trial  for  pretended  offenses, 
beyond  seas,  ever  intended  that  their  citizens,  being  in  other 
States,  should  be  there  tried  for  supposed  crimes,  alleged  to  have 
been  committed  in,  and  against  the  laws  of,  their  own  State. 

Thus,  in  New  York,  in  a  somewhat  early  case,  it  was  held  that 
a  dual  marriage  outside  the  State,  as  for  instance,  one  marriage 
in  another  American  State  than  New  York,  and  then  another  by 
the  same  man  in  Canada,  is  not  bigamy  in  New  York,  criminally 
punishable  there,  although  the  last  married  parties  come  into 
and  reside  and  cohabit  in  the  State  of  New  York,  ostensibly  as 
husband  and  wife.  The  second  marriage,  in  Canada,  took  place 
beyond  the  force  of  New  York  law,  and  was  not,  therefore,  in 
violation  thereof;  and  the  cohabiting,  afterward,  in  New  York, 
was  but  adultery.2 

YII.    Larceny  at  Common  Law  by  Bringing  Stolen  Pboperty 

INTO  THE  State. 

Whether  bringing  stolen  property,  by  the  thief,  out  of  one 
State  into  another  State,  foreign  to  each  other  in  the  light  in 

*  "  Incltuio  univs  est  excluaio  alter-         '  People  v.  Hosier,  2  Parker's  Cr. 
ius."  Branch's  Prtncipia,59',  Broom's      Cases,  195. 
Maxims,  *  652. 


LAECENY    AT    COMMO^"    LAW.  229 

Avhicli  the  American  States  are  to  each  other  foreign,  amounts  to 
larceny  at  common  law  in  the  State  into  which  it  is  brought,  and 
is  there  punishable  as  such,  is  a  question  upon  which  the  decisions 
of  the  courts  are  bj  no  means  uniform. 

The  Rule  in  England.  In  England  the  ruling  is,  that  bringing 
stolen  property  out  of  France  into  England  does  not  constitute 
larceny,  and  is  not  punishable  in  England  as  such.^ 

In  some  American  States.  So,  likewise,  there  is  the  same  rul- 
ing in  many  American  cases,  not  only  as  between  the  several 
American  States,  but  also  in  reference  to  cases  arising  in  Canada. 
It  is  held  that  bringing  the  stolen  property  into  the  State,  or  hav- 
ing it  in  possession  therein  by  the  thief,  does  not,  at  common  law, 
amount  to  larceny  in  the  State  into  which  it  is  thus  brought,  and 
that  there  can  be  no  punishment  of  such  person  therein.^ 

American  Rulings  to  the  Contrary.  On  the  other  hand,  it  is 
held  in  the  courts  of  others  of  the  States,  that  the  bringing  stolen 
property  by  the  thief  into  another  State  amounts  to  larceny  in 
the  latter  State,  and  is  there  punishable  as  such.^  Many  of  these 
rulings  in  favor  of  jurisdiction  were  made  under  staitutory  pro- 
visions, which  we  will  take  occasion  to  refer  to. 

The  True  Rule  at  Common  Law.  The  true  rule  at  common  law 
we  believe  to  be,  that  hringing  stolen  property  by  the  thief  out 

'  Reg.  V.  Madge,  9  C.  &  P.  29;  Hex  Mass.  14;  State  v.  Douglass,  17  Maine, 
(D.  Prowse,  Ry.  &  M.  349;  Roscoe  Cr.  193;  Hamilton  v.  State,  11  Ohio,  435; 
Ev.  7th  Am.  Ed.  662;  2  Russ.  on  1  Bish.  Cr.  L.  g§  136-144;  State  «.  El- 
Crimes,  4th  Eng.  Ed.  328  et  seq.;  4  lis,  3  Conn.  186;  Henry  v.  State,  7 
Bac.  Abt.  Bonvier's  Ed.  179;  Hex  v.  Cold.  331;  Tyler  v.  People,  8  Mich. 
Anderson,  2  East  P.  C.  772,  c.  16,  s.  320 ;  Commonwealth  v.  Uprichard,  3 
156.  Gray,   434;   People  v.   Williams,  24 

'■'States. Brown, lHay\v.(N.C.)  100;  Mich.   156;    State  «.   Cummings,  33 

People  V.  Schenck,  2  John.  479;  Peo-  Conn.  260;  State  v.  Williams,  35  Mo. 

pie  V.  Gardner,  2  John.  477;  People  v.  229;  Ferrill  v.  Commonwealth,  1  Du- 

Loughridge,  1  Neb.  11 ;  State  ■».  New-  val,   153;      State    v.   Underwood,  49 

man,  9  Nev.  48;  Stanleys.  State,  24  Maine,  181;  Commonwealth  v.  Hol- 

Ohio  St.  166;  Simmons  v.  Common-  der,  9  Gray,  7;  Watson  v.  State,  36 

wealth,  5  Binn.  617;  Simpson «.  State,  Miss.    593;     State    v.    Stimpson,    45 

4   Humph.   456;     Commonwealth  v.  Maine,  608;  CommonweaUh  v.  Bea- 

Uprichard,  SGray,  434;  Beal».  State,  man,  8  Gray,  497;  Ham  r.  State.  17 

15  Ind.  378 ;  State  ®.  Reonnals,  14  La.  Ala.    188;     Hemmaker   v.   State,    12 

Ann.  276;  State  v  LeBlanch,  31  N.J.  Mo.  453;  State  v.  Seay,  3  Stew.  123; 

82;  State  v.  Bennett,  14  Iowa,  479.  People  v.  Burke,  11  Wend.  129;  State 

*  Commonwealth  ».  Cullins,  1  Mass.  ■».  Bennett,  14  Iowa,  479. 
116;   Commonwealth  v.   Andrews,  3 


230  INTER-STATE    CRIMINAL    JURISDICTION. 

of  the  State  where  stolen  into  another  State,  does  not  amount  to 
larceny  at  common  law  in  the  State  in  which  it  is  thns  brought, 
and  is  not  punishable  as  such  therein.  That  to  make  it  a  crime 
punishable  therein,  it  must  be  so  declared  by  statute;  and  in 
such  case  it  is  the  act  of  hringing  the  stolen  property  into  the 
State,  and  not  the  stealing  of  it  in  the  other  State,  that  is  to  be 
punishable  by  statute;  for  one  State  cannot  punish  a  crime  com- 
mitted in  another  against  the  laws  of  such  other,  for  such  laws 
have  no  force,  except  in  the  State  where  enacted ;  nor  can  it  pun- 
ish in  virtue  of  its  own  laws,  for  they  likewise' are  confined  in 
authority  to  the  State  where  enacted,  and  not  being  in  force  in 
the  State  where  the  crime  is  committed,  are  in  no  manner  vio- 
lated. l^QT  would  a  local  law  be  valid  providing  for  such  a  state 
of  things.  It  would  be  void  as  assuming  to  reach  beyond  the 
territorial  boundaries  of  the  enacting  power;  but  a  law  making 
it  a  crime,  of  whatever  name  it  might  be  called,  to  bring  into  a 
State,  or  have  possession  therein,  of  property  stolen  in  another 
State,  knowing  it  to  have  been  stolen,  when  such  bringing  in  or 
having  in  possession  is  with  intent  to  prevent  the  true  owner 
thereof  from  regaining  possession  of  the  property,  and  punishing 
such  crime  on  indictment  and  conviction,  would  doubtless  be  valid. 
Nor  would  or  should  such  a  law  and  punishment  be  a  defense,  if 
pleaded  on  a  trial  for  larceny  in  the  State  where  the  act  of  steal- 
ing was  committed,  for  in  the  one  case  the  crime  is  the  larceny, 
and  in  the  other  it  is  the  bringing  stolen  property  into  a  differ- 
ent State;  or  having  it  therein,  with  intent  to  prevent  its  being 
regained  by  the  owner.  The  one  act  is  a  crime  against  the  laws 
of  one  State,  and  the  other  act  is  a  distinct  crime  against  the  laws 
of  the  other.  But  whatever  a  State  and  its  courts  may  assume 
to  do,  whether  to  punish  as  a  common  law  offense,  or  by  virtue 
of  some  statutory  provision  of  its  own,  the  bringing  of  stolen 
property  into  its  territorial  limits,  yet,  in  virtue  of  the  national 
Constitution,  it  is  compelled  to  deliver  up  tlie  culprit,  and  desist 
from  either,  on  demand  of  the  State  wherein  the  principlal  crime  ia 
committel,  properly  made  under  the  national  laws  and  Constitu- 
tion. 1  In  the  case  cited  of  People  v.  Williams,  the  learned  Justice 
CooLEY,  in  reference  to  this  duty  of  delivering  up  the  culprit  to 
another  jurisdiction,  says:  "  It  may  be  suggested  that,  to  sustain 

>  People  V.  Williams,  24  Mich.  156,  166. 


LARCENY    AT    COMMON    LAW.  231 

this,  jurisdiction  might  stand  in  the  way  of  the  performance  of 
constitutional  obligation  on  the  part  of  the  States  to  return  fugi- 
tives from  justice.  There  does  not  appear  to  me  to  be  any  diffi- 
culty on  that  score.  Wlien  one  is  demanded  as  a  fugitive  from 
justice,  tlie  paramount  law  requires  his  surrender,  and  there  can 
be  no  pretense  for  refusal,  when  the  crime  alleged  in  this  State 
is  not  the  principal  offense,  but  consists  simply  in  persistence 
in  the  crime  committed  in  the  State  demanding  him."^  To  our 
mind  the  constitutional  obligation  to  deliver  up  tlie  thief  precludes 
the  idea  of  punishment  in  the  State  to  which  he  has  fled,  as  for 
committing  in  the  other  State  the  original  offense,  but  does  not 
deprive  the  State  into  which  the  stolen  property  is  brought  of 
the  right  or  power  to  pass  laws  making  the  act  of  bringing  it 
into  the  State  a  crime,  and  of  punishing  it  as  such.  But  the 
constitutional  obligation  to  deliver  up  the  culprit  is  paramount 
in  any  event. 

Statute  of  Michigan  Providing  for  Punishment  of  Thief  Bring- 
ing Property  into  the  State.  In  Michigan  there  is  a  statute  de- 
claring that  "  every  person  who  shall  feloniously  steal  the  prop- 
erty of  another,  in  any  other  State  or  country,  and  shall  bring  the 
same  into  this  State,  may  be  convicted  and  punished  in  the  same 
manner  as  if  such  larceny  had  been  committed  in  this  State,  and 
in  ever}'^  such  case  such  larceny  may  be  charged  to  have  been 
committed  in  any  town  or  city  into  or  through  which  such  stolen 
property  shall  have  been  brought." ^  It  was  under  this  statute, 
and  not  as  at  common  law,  that  the  prosecution  in  the  People  v. 
Williams^  above  cited,  was  carried  on,  and  consequently  the  very 
able  remarks  of  the  learned  jurist,  Cooley,  in  reference  to  the 
jurisdiction  of  the  court  and  State  in  such  cases  are  to  be  taken 
as  made  in  reference  to  this  statute,  and  the  power  to  and  duty  of 
the  States  to  provide  for  such  cases  by  statute. 

Iowa.  Jn  Iowa  there  is  also  a  statute  intended  to  meet  such 
cases.  It  declares  that,  "When  the  commission  of  a  public 
offense  commenced  without  this  State  is  consummated  within  the 
boundaries  thereof,  the  defendant  is  liable  to  punishment  there- 
for in  this  State,  though  he  was  without  the  State  at  the  time 
of  the  commission  of  the  offense  charged:  Provided,  He  con- 
summated the  offense  through  the  intervention  of  an  innocent  or 

'  24  Mich.  166.  163 ;  2  Compiled  Laws  of  Mich.  1871, 

•  People  fl.  Williams,  24  Mich.  156,      §  7006. 


232  INTER-STATE    CRIMINAL    JURISDICTION. 

guilty  agent  within  tliis  State,  or  any  other  means  proceeding 
directly  from  himself;  and  in  such  case  the  jurisdiction  is  in  the 
county  in  which  the  offense  is  consummated.''^  It  was  upon 
this  statute  that  the  prosecution  of  State  v.  Bennett  *  was  at- 
tempted to  be  sustained;  but  the  court  held  the  statute  inappli- 
cable to  the  case,  and  sustained  the  conviction  upon  general 
principles,  "  that  the  continued  possession  of  the  property  stolen 
is  itself  a  complete  and  full  larceny." 

New  York;  lUinois;  Alabama.  By  statutes  in  both  New  York 
and  Illinois,  the  offense  of  bringing  stolen  property  into  the 
respective  States  is  made  punishable. ^     So,  also,  in  Alabama.* 

The  Law  of  the  Trial.  If  the  punishment  inflicted  by  the 
State  into  which  the  stolen  property  is  brought  is  to  be  regarded 
as  a  punishment  of  the  larceny  committed  in  the  other  State, 
then  by  what  law  shall  the  prisoner  be  tried,  and  by  the  terms 
of  what  law  shall  the  punishment  be  measured?  If  by  the  law 
of  the  State  where  the  larceny  was  committed,  then  as  such  laws 
have  no  extra  territorial  effect,  and  as  a  State  does  not  administer 
the  criminal  laws  of  another  State,  trial  and  punishment  by 
virtue  thereof  is  impracticable.  If,  on  the  other  hand,  the  trial 
and  punishment  of  the  larceny  committed  in  the  other  State  is 
to  conform  to  the  law  of  the  forum,  the  law  of  the  State  into 
which  the  stolen  property  is  brought,  then  this  law  in  like  man- 
ner, having  no  extra  territorial  force,  is  not  the  law  against 
which  the  offense  was  committed  in  the  State  where  the  larceny 
was  committed,  for  this  law  never  was  in  force  there,  and,  there- 
fore, never  has  been  violated.  Moreover,  the  degree  of  punish- 
ment is  not  necessarily  the  same  in  each  of  the  States  by  the 
statute  law  of  each;  so  that  if  the  punishment  be  measured  by 
the  law  of  the  State  in  which  the  larceny  occurred,  it  may  be 
more  severe  than  punishments  of  like  offenses  committed  in  the 
jurisdiction  of  \\\q  forum,  so  that  it  may  result  that  suoh  crimes 
committed  in  a  different  State  are  punished  more  severely  in  the 
courts  of  a  neighboring  State  than  local  crimes  therein  of  its 
own  citizens  are  punished;  and  so,  on  the  other  hand,  the  power 
to  pardon,  vested  in  the  Governor  of  the  State  into  which  the 

'  State  V.  Bennett,  14  Iowa,  479, 480,  »  Rev.  Stat.  N.  Y.  Part  4,  Chap.  I., 

481;  Revision  of  1860,  §  4505;  Code  Tit.  7,  §  4;  Rev.  Stat.  111.  1874,  407, 

of  1873,  ^  4157.  §  399. 

•  14  Iowa,  479.  *  Rev.  Code  Ala.  1867, 707,  §  3718. 


LARCEIS^Y    AT    COMMON    LAW.  233 

property  is  brought  and  in  which  conviction  is  had,  is  so  exer- 
cised as  to  pardon  (if  a  pardon  be  granted)  a  crime  committed 
in  a  different  State. 

Plea  in  Bar  of  Second  Trial.  If  after  trial,  conviction  and 
pardon  abroad,  or  after  trial,  conviction  and  suffering  the  punish- 
ment abroad,  the  convict  return  to  the  State  wherein  he  actually 
committed  the  larceny,  and  is  arraigned  for  trial  there  for  the 
same  offense,  are  these  proceedings  in  a  different  State  a  good 
plea  in  bar  in  his  defense?  To  us  it  is  clear  that  no  such  power 
exists  or  can  be  enacted  by  legislatures  of  the  States  to  punish 
crimes  committed  in  other  States.  The  spirit  of  the  National 
Constitution  forbids  it,  wherein  the  duty  is  imposed  upon  the 
States  to  surrender  criminals. 

As  to  the  necessity  of  a  State  protecting  itself  from  being 
made  a  refuge  for  the  criminals  of  other  States  in  case  they  are 
not  followed  and  demanded,  it  were  constitutional  and  sufficient 
to  make  it  by  statute  a  crime  to  thus  abuse  the  hospitality  of  a 
State  —  a  distinct  crime  from  the  original  offense.  It  is  no  hard- 
ship, then,  or  violation  of  constitutional  law,  that  the  culprit  be 
punished  in  turn  for  each.  Nor  can  comity  confer  such  a  power 
of  enforcing  the  criminal  laws  of  other  States.  Comity  judi- 
cially exercised  is  confined  to  the  enforcement  of  contract,  per- 
sonal liabilities  usually  recognized  as  such  by  civilized  nations 
and  which  follow  the  person  wherever  he  goes,  and  to  such  torts 
committed  upon  the  person  or  personal  property  as  are  recognized 
at  common  law  as  such,  and  in  regard  to  which  actions  are  of  a 
transitory  nature;  and  whoever  seeks  a  remedy  for  these  obtains 
it  according  to  the  law  of  the  forum. 

If  larceny  committed  in  one  State  is  to  be  punished  in  another, 
then  may  also  most  offenses. 

The  Sui^reme  Court  of  New  York,  soon  after  the  decision  of 
the  case  of  the  Commonwealth  v.  Cullin.,  ^  above  referred  to, 
decided  directly  to  the  contrary  in  two  similar  cases,  and  thus 
the  principle  was  settled  in  New  York,^  until  by  the  revised 
statutes  of  that  State  it  was  enacted  that  "  every  person  who 
shall  feloniously  steal  the  propertv  of  another  in  any  other  State 
or  country  and  shall  bring  the  same  into  this  State,  may  be  con- 
victed and  punished  in  the  same  manner  as  if  such  larceny  had 

'  1  Mass.  IIG.  2  People  v>.  Gardner,  3  John.  477; 

People  V.  Schenck,  2  John.  479. 


234  IXTER-STATE    CRIMINAL    JURISDICTION. 

been  committed  in  this  State;  and  in  every  such  case  such  larceny 
niav  be  charged  to  have  been  committed  in  any  town  or  city  into 
or  tlirongh  which  the  stolen  property  shall  have  been  brought." 
Subsequently,  in  a  prosecution  under  this  statute  (which  seems 
to  have  been  copied  from  that  above  referred  to,  of  Michigan,)  it 
was  held  by  the  Supreme  Court  of  New  York  that  the  defendant, 
who  had  brought  stolen  property  from  Canada,  where  it  was  stolen 
by  him,  into  New  York,  was  liable  to  be  tried  and  punished 
therein;^  but  that  the  trial  and  punisliment  was  for  bringing  in 
the  stolen  property  as  an  offense  against  the  State,  and  not  for 
the  original  crime  committed  in  Canada.'  The  court  say.  Savage, 
C.  J.:  "  It  is  not  the  larceny  in  Canada  which  we  punish,  but  the 
larceny  committed  in  the  State  of  New  York,  in  every  place  into 
which  the  stolen  property  has  been  brought."' 

In  the  case  of  the  People  v.  Gardner^^  above  cited,  the  court 
say:  "  When  the  original  taking  is  out  of  the  jurisdiction  of  this 
State,  the  offense  does  not  continue,  and  accompany  the  posses- 
sion of  the  thing  stolen,  as  it  does,  in  the  case  where  a  thing  is 
stolen  in  one  county  and  the  thief  is  found  with  the  property  in 
another.  The  prisoner  can  be  considered  only  as  a  fugitive  from 
justice  from  Vermont." 

In  the  subsequent  case,  in  Massachusetts,  of  the  Common- 
wealth V.  Uprichard,,  the  Supreme  Court  of  that  State  hold  tliat 
the  doctrine  laid  down  by  that  court  in  Commonwealth  v.  Cullin 
and  in  Commonwealth  v.  Andrews  is  inapplicable  to  cases  of 
larceny  occurring  \v\.forei(jn  countries,  as  in  Canada  for  instance, 
while  in  a  case  in  Michigan,'  in  1S03,  the  Supreme  Court  of 
that  State  were  equally  divided  as  to  jurisdiction  in  regard  to  a 
larceny  committed  in  Canada,  the  stolen  property  having  been 
brought  by  the  thief  into  the  State  of  Michigan.' 

The  case  of  Commonwealth  v.  Culluu,  cited  above,  and  decided 
by  the  supreme  court  of  Massachusetts  in  1804,  seems  to  have  held 
much  weight  in  subsequent  rulings  in  favor  of  the  jurisdiction 
of  a  State  to  punish  crime  committed  in  a  neighboring  Ameri- 
can State,  in  cases  where  the  guilty  party  brought  the  fruits  of 
his  guilt  into  the  State  of  the  forum.  In  that  case  the  larceny 
was  committed  in  the  State  of  Rhode  Island,  and  the  stolen  prop- 

'  People  V.  Burke,  11  Wend.  129.  *  2  John.  477. 

•  Ibid.  »  3  Gray,  434. 

» 11  Wend.  484.  •  3Iorrissey  v.  People,  11  Mich.  827. 


LAECENY    AT    COMMON"    LAW.  235 

erty  was  brought  by  the  thief  into  Massachusetts.  He  being 
there  arrested  and  tried,  instead  of  being  remanded  to  Rhode 
Island,  the  supreme  judicial  court  held  that  the  courts  of  that 
State  had  jurisdiction  of  the  offense,  and  he  was  convicted  and 
sentenced  accordingly.  ^  The  jurisdiction  was  expressly  sustained 
on  the  principle  of  English  law,  making  the  thief  liable  as  for  a 
new  taking  in  any  and  every  county  wherein  he  entered  in  Eng- 
land with  the  stolen  goods.  Yet  it  is  obvious,  that  there  is  not 
the  semblance  of  a  parallel  between  the  relative  political  or  judi- 
cial position  of  the  American  States  toward  each  other,  and  that 
of  the  several  counties  toward  each  other  in  England.  The  latter 
are  of  the  same  sovereignty.  The  States  here  are  independent 
of,  and  in  their  jurisprudence  foreign  to,  each  other.  Even  in 
England,  such  offenses  committed  in  Scotland  are  not  within  the 
jurisdiction  of  the  English  courts,  although  both  these  countries 
are  subject  to  the  same  government.  It  is  clear,  then,  that  the 
reason  of  the  rule  asserted  in  the  Massachusetts  case  does  not 
exist  in  the  United  States,  and  where  the  reason  of  the  law  fails, 
the  law  itself  does  not  exist.  In  the  Massachusetts  case  above 
cited.  Commonwealth  v.  Cullins,  the  relation  of  the  American 
States  are  erroneously  recognized  as  the  same  as  is  the  relation 
of  two  counties  in  the  same  State  to  each  other,  totally  ignoring 
the  sovereignty  of  the  State.  The  court  said,  Sedgwick,  J.,  that 
they  were  "  clearly  of  opinion  that  stealing  goods  in  one  State 
and  conveying  stolen  goods  into  another  State  was  similar  to  steal- 
ing in  one  county  and  conveying  the  stolen  goods  into  another, 
which  was  always  held  to  be  felony  in  both  counties,  and  there- 
fore the  jury  (if  they  believed  the  witness)  would  find  the  defend- 
ant guilty."^  We  may  remark  here,  that  when  the  larceny  is  in 
one  county,  and  trial  in  another,  within  the  same  State  or  king- 
dom, the  law  of  the  crime  and  of  the  measure  of  punishment  is 
always  the  same,  whether  tried  in  one  or  the  other  of  the  coun- 
ties. But  not  so  when  the  crime  is  committed  in  one  State^  and 
the  trial  is  had  in  another  State.  What  is  grand  larceny  in  one 
may  be  petty  larceny  in  the  other.  The  punishment  in  one  may 
be  at  the  whipping  post;  in  the  other  it  may  be  in  the  peniten- 
tiary. As  between  two  counties,  the  offense  is  nevertheless  com- 
mitted, wherever  triable,  against  one  and  the  same  sovereignty; 

'  Commonwealth  tj.  Cullins,  1  Mass.         » 1  Mass.  117. 
116. 


236  INTER-STATE   CRIMINAL   JURISDICTION. 

but  as  between  two  States,  the  original  offense  is  committed 
against  one  of  tlieni,  and  if  tried  in  another  State  the  trial  is  for 
violations  of  the  law  thereof,  and  not  of  tlie  State  where  the 
crime  is  committed;  for  one  State  cannot  administer  the  crimi- 
nal laws  of  another  State.  If  the  trial  be,  however,  for  hring- 
ijig  stolen  property  into  the  State^  and  that  is  by  statute  there 
inade  anminaly  then  there  can  be  no  question  as  to  jurisdiction. 
The  subsequent  case  of  Commonioealth  v.  Anflreios^  was  mainly- 
put  upon  authority  of  Commonioealth  v.  Cullijis  above  referred 
to,  and  tlie  doctrine  of  similar  relations  of  States  and  of  coun- 
ties was  therein  again  erroneously  assumed.  In  the  case  of  Ilam- 
ilton  v.  The  State,  cited  above,  as  ruling  in  favor  of  the  jurisdic- 
tion, the  supreme  court  of  Ohio  hold  that,  on  general  principles, 
a  theft  in  one  State  is  liable  to  be  punislied  in  another  State 
wherein  the  stolen  property  is  brought  by  the  thief,  as  a  contrary 
course  would  "afford  a  large  immunity  for  crime."^  But  Eead, 
J.,  in  his  dissenting  opinion,  more  judicially  suggests  that  it 
were  an  easy  matter  for  the  State  to  enact  a  law  making  it  crimi- 
nal for  the  thief  to  bring  into  thp  State  property  stolen  by  him 
in  another  State.  If,  howev^er,  such  statutory  provision  M^ere 
made,  it  would  remain  to  determine  the  law  of  the  other  State, 
to  ascertain  if  by  the  law  there  the  act  amounted  to  larceny ;  so, 
even  then  it  would  have  become  necessary  to  construe  and  act 
on  the  law  of  both  States,  as  the  act,  in  view  of  either  one  alone, 
would  not  amount  to  a  crime  in  the  State  where  the  trial  was 
pending,  and  thus  ^^ould  recur  the  question  again  of  the  power 
to  enforce  or  act  upon  the  criminal  laws  of  a  foreign  State. 

In  the  case  of  Commonvjealth  v.  Vprichard,  the  whole  sub- 
ject is  reviewed  most  ably  by  Chief  Justice  Shaw;  and  though 
the  court  in  that  case  followed  the  law  as  settled  in  tlie  cases 
above  cited  from  Massachusetts,  yet  this  decision  clearly  shows 
that  not  only  these  earliest  cases  in  Massachusetts  were  errone- 
ously decided,  and  that  tlie  principle  of  analogy  therein  declared 
beween  States  of  the  Union  and  counties  in  the  English  Kingdom 
does  not  exist;  but  the  learned  judge  says,  in  substance,  that  if  the 
question  was  a  new  one,  a  different  conclusion  would  perhaps  be 
now  come  to.^  While  this  case  conforms  to  the  rule  of  law,  as 
already  settled   in    Massachusetts,  the  very  lucid   and  learned 

'  2  Mass.  14, 19.  '  Commonwealth    v.   Uprichard,  8 

*  11  Ohio,  435.  Gray,  434,  439. 


LARCEI^Y    AT    C0M:M0X    LAW.  237 

opinion  clearly  sliows  that  the  true  rule  of  the  law  is  the  other 
way,  and  that  the  courts  of  one  State  have  no  power,  whether  at 
common  law  or  by  statute,  to  punish  crimes  committed  in  other 
States  or  in  any  manner  inflict  punishments  involving  the  enforce- 
ment of  the  criminal  laws  of  such  other  States. 

Mississippi.  By  statute,  in  Mississippi,  a  person  who  steals 
property  in  another  State  and  brings  it  into  the  State  of  Missis- 
sippi, is  indictable  and  punishable  in  like  manner  as  if  the  crime 
were  committed  in  the  said  State,  and  the  venue  may  be  charged 
in  any  county  into  or  through  which  the  property  shall  have 
been  brought.  ^  In  prosecutions  under  such  a  statute  it  is  held 
that  to  charge  a  defendant  with  larceny,  as  committed  merely 
in  a  certain  county,  without  words  to  bring  the  case  within 
the  statute,  by  showing  or  alleging  the  oflfense  to  have  had  its 
inception  in  another  State,  is  bad.  The  charge  in  the  indictment 
should  bring  the  case  within  the  language  of  the  statute.  The 
case  of  Stanley  v.  The  State^  involved  the  question  as  to  bring- 
ing stolen  property  into  the  State  from  Canada.  In  this  case 
the  ruling  in  State  v.  Bartlet^  and  Sun  v.  Underwood^  were 
referred  to  and  disapproved,  and  the  rule  adopted  that  goods 
stolen  in  o,  foreign  country  and  brought  into  Ohio  would  not  sub- 
ject the  thief  to  a  prosecution  in  that  State.  But  where  the  goods 
were  stolen  in  another  State  and  brought  into  Ohio,  the  court 
intimated  that  they  would  feel  bound  by  a  prior  decision, ^  and 
would  hold  the  thief  liable  to  a  prosecution  for  larceny. 

Thus,  then,  the  rule  of  law  established  in  Ohio  in  Hamilton, 
V.  The  State,^  that  bringing  stolen  property  into  the  State  from 
a  sister  State  wherein  it  has  been  stolen  is  larceny  at  common 
law,  has  been  denied  in  cases  where  the  property  is  brought  in 
from  a  foreign  State  wherein  it  had  been  stolen.  '^ 

In  the  case  above  cited ^  the  court  seem  to  still  tolerate  the 

^  Norris  v.  State,  33  Miss.  373 ;  Com-  the  property  being  brought  in  dead, 

monwealth  v.  Beaman,  8  Gray,  497.  Ibid. 
And  if  live  property  be  stolen  and         *  24  Ohio  St.  166. 
killed  in  one  State,  and  be  carried  *  11  Vt.  650. 

dead  into  another,  even  if  otherwise  *  49  Maine,  181. 

punishable,   it    is    not   sufficient  to  '  Hamilton  «.  State,  11  Ohio,  435. 

charge  generally  in  the   indictment  *  11  Ohio,  436 

the  stealing  and  bringing  the  prop-  '  Stanley  v.  State,  24  Ohio  Bt.  166. 

erty  in,  but  the  particulars  must  be  *  Ibid, 

so  alleged   as  to  show  the  fact  of 


238  INTER-STATE    CRIMINAL    JURISDICTION. 

doctrine  of  Hamilton  v.  The  State  upon  the  principle  of  stare 
decisis^  but  regards  it  as  otherwise  illfouuded;  and  McIvaine,  J., 
6a3's:  "  I  have  no  doubt  the  Legislature  might  make  it  a  crime 
for  a  thief  to  bring  into  this  State  property  stolen  by  him  in  a 
foreign  country.  And  in  order  to  convict  of 'such  crime,  it 
would  be  necessary  to  prove  the  existence  of  foreign  laws  against 
larceny.  The  existence  of  such  foreign  laws  would  be  an  ingre- 
dient in  the  statutory  offense.  But  that  offense  would  not  be 
larceny  at  common  law,  for  the  reason  that  larceny  at  common 
law  contains  no  such  element.  It  consists  in  taking  and  carry- 
ing away  the  goods  of  another  person  in  violation  of  the  rules 
of  the  common  law,  without  reference  to  any  other  country.' 

In  the  case,  State  v.  Ellis,'^  already  cited,  although  the  supreme 
court  of  errors  maintain  the  doctrine  that  bringing  stolen  jjrop- 
erty  by  the  thief  into  another  State  than  where  stolen  is  larceny, 
yet  it  is  conceded  that  it  is  only  so  by  analogy,  as  in  cases  be- 
tween counties  in  England;  but  the  court  adheres  to  the  original 
ruling,  in  that  it  is  too  late  to  recur  to  first  principles,  citing  at 
the  same  time  the  early  cases  in  Massachusetts  as  establishing 
the  same  doctrine,  also  recurring  again  to  the  English  cases;  but 
to  our  opinion  the  rule  and  reason  of  the  law  as  laid  down  in 
the  opinion  of  Peters,  J.,  in  the  same  case  in  a  dissenting  opin- 
ion is  not  only  more  reasonable,  but  the  better  law  in  these  States, 
the  constitutional  relations  of  which  contemplate  the  delivery 
up  and  punishment  of  criminals  in  the  State  and  under  the  laws 
thereof  wherein  crimes  are  committed,  in  case  the  culprit  be 
found  in  another  State.  There  is  a  brief,  but  interesting,  sum- 
ming up  of  the  rulings  on  this  subject  in  People  v.  Loughhridge, 
where  the  right  to  exercise  any  such  inter-State  authority  is 
denied.  The  court,  after  referring  with  approbation  to  the  prac- 
tice in  regard  to  goods  stolen  and  brought  from  one  county  to 
another  in  the  same  State,  very  aptly  says:  "To  extend  this 
application  to  States,  is  to  attach  to  the  crime  of  larceny  penal- 
ties uncertain  in  their  character,  possibly  greatly  incommensu- 
rate with  the  offense  committed  and  such  as  do  not  attend  any 
other  crime."^ 


'  Stanley  «.  State,  24  Ohio  St  IGG,         » 3  Conu.  188. 
174.  •  » 1  Neb.  11, 13. 


CRIMES    COMMITTED    PARTLY    I'S    TWO    STATES.       239 


VIII.     Ckimes  Committed  Partly  in  one  State  and  Partly 

IN  Another, 

Difficult  questions  of  inter-State  law  occasionally  arise  in 
respect  to  oifenses  committed  partly  in  one  State  and  partly  in 
another;  as  where  the  act  is  done  to  a  person  in  one  State  which 
results  in  his  death  in  another;  or  where  fire  is  wantonly  set  in 
one  State  to  a  building  situated  partly  in  that  State  and  partly  in 
another;  or,  as  if  one  fire  a  gun  in  one  State  across  the  State  line 
into  another  State  at,  and  intentionally  thereby  kill  a  person  sit- 
uated in  the  other  State.  The  decisions  of  the  American  courts 
in  this  respect  are  by  no  means  uniform.  Under  a  statute  of 
Michigan  declaring  that  if  a  mortal  wound  shall  be  given,  or 
other  violence  or  injury  shall  be  inflicted,  or  poison  administered 
on  the  high  seas  or  on  any  other  navigable  waters,  or  on  land, 
either  within  or  without  the  limits  of  that  State,  by  means 
whereof  death  shall  ensue  in  any  county  thereof,  such  oftense 
may  be  prosecuted  and  punished  in  the  county  where  such  death 
may  happen. ^ 

In  a  case  under  this  statute  the  supreme  court  of  Michigan 
held  it  to"  be  constitutional  and  valid. ^  In  the  case  here  cited, 
the  wound  which  caused  the  death  was  inflicted  within  the  limits 
of  Canada  —  that  is,  upon  that  part  of  the  river  St.  Clair  which 
is  on  the  eastern  or  Canadian  side  of  the  boundary  line  between 
the  United  States  and  Canada  —  and  the  death  resulting  from 
that  wound  occurred  within  the  county  of  St.  Clair,  in  the  State 
of  Michigan.  The  defendant  being  convicted  of  manslaughter, 
the  supreme  court  of  Michigan  held  the  jurisdiction  to  be  right- 
ful and  aflirmed  the  conviction. ^  The  supreme  court  of  Michi- 
gan, Manning,  J.,  in  illustration  of  their  ruling,  say  substan- 
tially that  the  wrong  act  itself,  and  the  wound  which  was  the 
immediate  consequence  thereof,  did  not  constitute  the  ofi'ense. 
That,  had  death  not  ensued,  the  prisoner  would  have  been  guilty 
of  assault  and  battery,  not  murder,  and  would  have  been  crimin- 
ally accountable  to  the  laws  of  Canada.  But  that  the  conse- 
quences of  the  wrongful  act  were  not  confined  to  Canada;  that 
they  followed  the  injured  person  into  Michigan,  where  they  con- 

'  Tyler   v.   People,   8   Mich.    320,         ^jbid. 
332.  »Ibid. 


240  IXTER-STATE    CRIMINAL    JURISDICTION. 

tinned  to  operate  until  the  crime  was  consummated  in  his  death.* 
In  an  early  case  in  New  Jersey,  on  the  other  hand,  it  has  been 
held  that  such  a  law  as  the  one  above  referred  to  as  existing  in 
Miehif^an,  is  necessarily  void.'  But  in  the  case  of  Hunter  v. 
The  State^  decided  as  late  as  November,  1878,  in  New  Jersey, 
Chief  Justice  Beasley,  after  a  very  logical  discussion  of  this 
question,  in  giving  the  opinion  of  the  court  on  the  disputed 
point,  whether  the  courts  of  New  Jersey,  under  their  local  stat- 
ute, could  punish  a  person  giving  a  mortal  blow  within  the  juris- 
diction of  that  State,  where  the  death  of  the  victim  occurs  within 
that  of  another  State,  held  that  the  courts  had  no  such  jurisdic- 
tion. The  court  also  denies  the  correctness  of  the  earlier  case 
cited  above. 3 

Where  the  Oflfense  is  Committed  by  a  Person  Out  of  the  Stat© 
Through  a  Resident.  Accessories.  On  this  subject  we  have  been 
able  to  find  but  few  cases,  and  the  conclusion  of  these  are  to  some 
extent  in  conflict.  The  better  and  more  generally  accepted  doc- 
trine would  seem  to  be  that  which  holds  that  a  person  who  resides 
in  another  State,  but  procures  a  person  within  the  State  to  com- 
mit a  felony  is  not  guilty  of  any  offense  punishable  in  the  State 
where  the  offense  was  committed,'* 

False  Pretenses.  If  a  person  makes  a  sale  in  one  State  of 
that  of  which  he  falsely  pretends  to  be  the  owner,  but  in  fact  to 
which  he  has  no  right  whatever,  and  in  pursuance  to  such  sale 
executes  a  conveyance  therefor  and  receives  the  purchase  money 
in  another  State,  he  is  guilty  in  the  latter  State  of  obtaining 
money  by  false  pretenses,  and  may  be  prosecuted  and  punished 
therefor  in  the  courts  of  the  latter  State.  The  offense,  though 
conceived  in  the  first  named  State,  is  in  snch  cases  actually  com- 
mitted in  the  latter  State,  where,  by  reason  of  such  false  pre- 
tenses and  still  holding  them  out  and  acting  on  them,  he  obtains 
the  money.* 

'  Tyler  v.  People,  8  Mich.  320,  383.       This  is  a  very  instructive  case,  and 

*  State  c.  Carter,  3  Dutch.  499.  valuable  for  its  thorough  discussion 

*  Hunter  v.  State,  40  N.  J.  Law,      of  this  subject. 

495.     See,    also,    Commonwealth    v.  *  State  v.  Wyckoff,  31  N.  J.  Law,  65 ; 

Macloon,  101  Mass.  1,  where  the  court  State  v.  Moore,  26  N.  H.  448;  State  v. 

holds  that  the  State  wherein  the  death  Knight,   1   Taylor  (N.  C.)  65.    But, 

occurs  has  jurisdiction  to  punish  tlie  see  contra.  State  v.  Grady,  34  Conn, 

offender  who  committed  that  which  118. 

caused  the  death  outside  of  the  State.  •  Commonwealth   v.  Van  Tuyl,   1 


OFFENDER    BEING    IN    ANOTHER    STATE.  241 

In  the  case  cited  from  Kentucky,  the  Commonwealth  v.  Van 
Tuylj  the  defendant  sold  in  Ohio,  in  times  of  slavery,  a  negro 
whom  he  claimed  as  his  property,  and  pretended  he  had  recap- 
tured him  there  as  a  fugitive  from  service  in  Tennessee,  and 
delivering  the  negro  to  the  purchaser  to  take  out  of  Ohio  at  his 
own  risk,  they  crossed  into  Kentucky,  where  the  conveyance  was 
made  and  the  money  paid  to  the  vendor,  when,  in  fact,  the  negro 
was  a  freeman.  On  indictment  of  the  pretended  owner,  in  Ken- 
tucky, for  obtaining  the  money  by  false  pretenses,  it  was  held 
that  the  oiFense  was  committed  in  that  State  and  that  the  courts 
there  had  rightful  jurisdiction  of  the  case. 

Where  one  made  false  pretenses,  in  Indiana,  and  relying  upon 
which  the  person  to  whom  they  were  made  delivered  goods  in 
New  York  to  the  one  who  made  the  false  pretenses,  it  was  held 
that  the  person  so  making  the  false  pretenses  was  not  liable  to 
indictment  in  Indiana.  ^ 

IX.     Crimes  Committed  in  a   State  without  the   Offender 

BEING   ThERKIN. 

Crimes  may  be  committed  in  a  State  without  the  wrong-doer 
or  oiFender  being  present  therein. 2  This,  too,  as  well  through 
the  agency  or  instrumentality  of  an  innocent  person  who  is 
resident  or  otherwise  present  in  such  State, ^  as  the  direct  act  or 
conduct  committed  or  done  by  the  wrong-doer  outside  of  the 
State,  whereby  an  injury  is  inflicted  on  a  person  therein  or  a 
crime  therein  committed  against  the  State.'* 

For  such  crimes  the  culprit  may  be  rightfully  tried  and  pun- 
ished, if  caught  within  the  State,  so  as  to  get  jurisdiction  of  his 
person,  just  as  if  the  offender  had  been  actually  within  the  State 
when  the  crimes  were  committed,  and  regardless  of  the  fact  as  to 
whether  the  offender  owed  allegiance  to  the  State  or  not,  so  far 
as  such  crimes  are  of  the  class  known  as  such  against  natural 

Met.   (Ky.)   1;    Adams  «.  People,   1  «.  Ellis,  3  Conn.  185;  State?;.  WyckoflF, 

N.  Y.  173,  though  not  precisely  in  31  N.  J.  Law,  65 ;  State  v.  Moore,  26 

point,  may  be  referred  to  with  ad-  N.  H.  448 ;  State  v.  Grady,  34  Conn, 

vantage.    See,  also,  ante,  §  6  of  this  118. 

chapter.  »  Adams  v.  People,  1  N.  Y.  173,  and 

'  Stewart  v.  Jessup,  51  Ind.  413.  other  cases  cited  above. 

"Adams  v.  People,  1   N.  Y.  173;  '•Adams  v.  People,  1  N.  Y.  173; 

Thayer  v.  Brooks,  17  Ohio,  489;  State  Thayer  v.  Brooks,  17  Ohio,  489. 
16 


242  INTER-STATE    CRIMINAL    JURISDICTION. 

law  as  well  as  against  the  statute  laws  of  the  State.*  These 
natural  laws  are  written  upon  the  hearts  of  men  as  well  as  in  the 
statute  books  of  States,  and  existed  before  government  existed, 
and  are  binding  everywhere,  in  all  countries,  and  at  all  times.* 
Of  the  declaratory  and  administrative  regulations  of  the  State,  it 
may  be  different;  these  are  more  for  the  government  of  the 
citizens  tlian  for  all  who  chance  to  come  within  the  State  or  may 
offend  therein  by  acts  done  from  without.'  As  to  persons  owing 
allegiance  to  a  State  and  who  have  not  expatriated  themselves 
by  casting  off  the  same,  they  may  be  punished  if  found  therein 
for  some  crimes  and  offenses  committed  at  places,  if  outside  of 
other  legal  jurisdictions,  beyond  the  boundaries  of  the  State 
whereof  they  are  citizens  or  subjects ;  thus,  for  treason,  wherever 
committed.* 

In  regard  to  mere  personal  injuries  or  torts  at  common  law 
thus  inflicted  by  persons  while  in  one  State  upon  the  persons  or 
property  of  others  in  another  State,  such  injuries  may  be  prose- 
cuted by  private  action  in  the  State  where  the  injuries  are 
suffered,  if  the  aggressor  be  found  therein  or  wherever  he  be 
found.*  The  case  oi  Adams  v.  The  People,  above  referred  to, 
was  a  conviction  for  obtaining  money  by  false  pretenses.  The 
defendant,  residing  in  Ohio,  by  means  of  false  grain  receipts 
purporting  to  show  delivery  to  him  of  a  quantity  of  grain  to  be 
forwarded  to  a  commission  house  in  New  York,  obtained  money 
thereon  through  an  innocent  agent  in  that  city  to  whom  the 
paper  was  forwarded  for  collection.  The  defendant  afterward 
went  to  Xew  York,  was  there  arrested,  indicted,  tried  and  con- 
victed, although  he  was  not  in  that  State  at  the  time  the  money 
was  obtained.^ 

The  case  of  Thayer  v.  Brooks  was  one  brought  in  a  court  of 
Ohio  against  a  citizen  of  Pennsylvania,  service  being  effected  in 
Ohio,  for  a  nuisance  or  injury  caused  to  plaintiff's  real  property  — 
a  mill  site  and  mill  situated  in  Ohio  —  by  diverting,  in  Pennsyl- 
vania, the  waters  of  a  lake  which  fed  a  stream  which  supplied 
water  power  to  plaintiff's  mill  in  Ohio.     The  Supreme  Court  of 

'Adams  «.  People,  1   N.  Y.  178;  »  Smith  e.  Bull,  17  Wend.  323;  Chap- 

Thayer  v.  Brooks,  17  Ohio,  489 ;  Jones  man  v.  Wilber,  6  Hill,  475 ;  Northern 

V.  Leonard,  13  West.  Jur.  15.  Cent.  R.  R.  Co.  «.  SchoU,  16  Md.  831; 

*  Adams  t>.  People,  1  N.  Y.  173.  Thayer  v.  Brooks,  17  Ohio,  489. 

» Ibid.  •  1  N.  Y.  173. 

*Ibid. 


OFFENDEE    BEING    Ilf    ANOTHER    STATE.  243 

Ohio  held  that  the  action  would  lie.i  Such,  too,  no  doubt,  is 
the  law,  for  the  action  for  injury  to  the  realty  being  local,  the 
rightful  jurisdiction  at  law  is  in  the  State  where  the  injured 
]3roperty  is  situated.  ^ 

But  in  Thayer  v.  BrooTcs,  the  court  went  further  and  said, 
that  in  such  actions  for  injuries  to  the  realty,  where  the  injurious 
act  is  done  in  one  State  and  the  injury  resulting  therefrom  is  to 
property  situated  in  another  State,  the  action  would  lie  in  either 
State,  citing  as  authority  therefor  the  rule  laid  down  by  Chitty* 
that  "  when  an  injury  has  been  caused  by  an  act  done  in  one 
county  to  land,  etc.,  situated  m  another,  the  venue  may  be  laid 
in  either."^  This  doctrine,  as  to  counties  of  the  same  State, 
does  not  apply,  however,  as  between  two  States.  The  error  in 
that  respect  consists  in  supposing  the  legal  relations  of  the 
American  States  to  be  the  same  as  that  of  English  counties 
toward  each  other,  as  was  erroneously  held  in  an  early  case  in 
Massachusetts.' 

By  statute  in  Indiana,  it  is  declared  that  "  every  person,  being 
without  this  State,  committing  or  consummating  an  offense  by 
an  agent  or  means  within  the  State,  is  liable  to  be  punished  by 
the  laws  thereof,  in  the  same  manner  as  if  he  were  present,  and 
Lad  commenced  and  consummated  the  offense  within  the  State."  « 
The  Supreme  Court  of  Indiana  hold  that  this  statute  is  not  to  be 
construed  to  embrace  persons  who  out  of  the  State  become  mere 
accessories  before  the  fact  to  crime  committed  in  the  State.'  The 
case  is  not  the  same  when  a  party  who  is  outside  the  State  procures 
an  innocent  party  in  the  State,  to  commit  an  act  within  the  State, 
which,  though  innocent  in  respect  to  liis  own  intent,  is  neverthe- 
less the  consummation  in  its  effects  of  a  criminal  act  in  such 
State.  In  the  latter  case,  the  promoter  of  the  act  who  is  without 
the  State,  brings  about  within  the  State  the  entire  act  and  cir- 
cumstances that  amount  to  the  crime,  and  he  is  therefore  guilty 

'  Thayer  v.  Brooks,  17  Ohio,  489.  is   clearly    illustrated    in    Common- 

2  Watts  V.  Kinney,  23  Wend.  484;  wealth  v.  Uprichard,  3  Gray,  434,  al- 

Livingston  v.  Jefferson,  1  Brock.  203.  though  the  ruling  in  Commonwealth 

'  1  Chitty  on  Plead.  999.  v.  CuUins  was  followed,  but  upon  a 

*  Thayer  v.  Brooks,  17  Ohio,  489-  different  principle  than  the  alleged 

493.  analogy. 

5  Commonwealth  v.  Cullins,  1  Mass.  *  Johns  v.  State,  19  Ind.  421,  423. 

116.    The  error  as  to  the  supposed  '  Ibid. 

analogy  between  counties  and  States 


244  INTER-STATE    CRIMINAL    JURISDICTION. 

as  principal  of  the  act  criminal  in  itself,  within  the  State  which 
constitutes  the  crime,  and  is  the  principal  therein.^  In  such 
case  the  innocent  person  in  the  State  is  the  means  used  to  perpe- 
trate the  crime  therein,  just  as  if  a  person  who  out  of  a  State 
shoots  across  the  line  into  another  State  and  therein  intentionally 
kills  another  person,  is  in  such  case  guilty  of  committing  the 
criminal  act  within  the  State  without  himself  being  at  the  time 
therein.  He  does  so  by  using  the  ball;  as  the  means  of  perpetrat- 
ing the  crime,  propelled  into  the  State  by  force  of  the  gun  and 
powder  therein,  instead  of  by  force  of  his  own  will,  using  the 
person  of  an  innocent  individual  to  bring  about  the  criminal 
result* 

X.      No   CONOUBEENT   CRIMINAL  JuEISDIOTION  IN  StATB  AND   NA- 
TIONAL Courts. 

In  the  early  history  of  our  national  jurisprudence,  laws  of 
Congress  were  passed  conferring  on  State  courts  jurisdiction 
under  the  national  laws,  in  cases  brought  by  the  United  States 
to  recover  penalties  and  forfeitures  for  violation  of  revenue  laws, 
to  the  same  extent  as  the  jurisdiction  in  that  respect  of  District 
courts  of  the  United  States,  and  also  to  take  proof  and  hear  and 
determine  as  to  the  remission  of  such  penalties  and  forfeitures 
under  the  acts  of  Congress  in  reference  thereto.  For  a  time, 
those  powers  were  exercised  by  the  State  courts,  without  objec- 
tion, as  mere  matter  of  comity^  but  not  as  a  duty  obligatory  in 
law;  but  in  the  course  of  time,  some  of  the  States  authorities 
declined  the  exercise  thereof  as  infringing  too  much  upon  the 
time  and  labor  of  the  State  courts,  and  others  from  a  doubt,  also, 
as  to  the  authority  thus  emanating  from  a  different  sovereignty, 
unless  confirmed  expressly  by  the  legislative  department  of  the 
State;  ^  so  that  the  policy  of  their  jurisprudence  came  to  be  in 
that  respect  altered  by  law.  Since  then  it  has  uniformly  been 
held,  or  recognized  as  law,  that  State  courts  cannot  take  cogni- 
zance of  crimes  against  the  national  government  and  laws.* 
Thus,  perjury  committed,  in  an  oath  taken  under  an  act  of  Con- 

'  Johns  r.  State,  19  Ind.  421.  423.  *  State  e.  Adams,  4  Blackf.   146; 

*  Bee  as  bearing  on  this  point,  Johns  State  t.  McBride,  1  Rice,  400 ;  People 

V.  State.  19  Ind.  428.  t>.  Kelly,  38  Cal.  145;  State  v.  Tullcr, 

'  Kentucky  «.  Dennison,  Governor  34  Conn.  280 ;  State  v.  Zulich,  5  Dutch, 

of  Ohio,  24  How.  66, 108.  409. 


NO    CONCUKRENT    JUEISDICTI0I7.  245 

gress,  is  not  punishable  in  a  State  court. ^  Nor  can  a  State  court 
punish  a  larcenj  committed  by  stealing  a  letter  from  the  United 
States  mail.  So  the  United  States  courts  have  no  jurisdiction 
over  crimes  committed  against  State  laws,^ 

'  See  cases  cited  above.    And,  also,      pie  v.  Murray,  5  Parker  Cr.  Cases,  577 ; 
State  V.  Pike,  15  N.  H.  83.  State  v.  Elder,  54  Maine,  881. 

»  State  V.  McBride,  1  Rice,  400 ;  Pec- 


246  THE   POLICE   POWER. 


CHAPTER    XXIII. 

THE   POLICE   POWER. 

I.  The  Police  Poweb  is  in  the  States. 

II.  Its  Extekt. 

III.  This  Powek  remained  in  the  Original  States. 

IV.  And  by  Parity  of  Right  is  in  the  New  States. 

I.     The  Pouce  Power  is  in  the  States. 

The  police  power  is  in  the  States  so  far  as  regards  their  domes- 
tic police;  but  cannot  be  so  regulated  or  exercised  as  to  interfere 
with  or  fetter  commerce,  or  to  infringe  upon  the  exclusive  power 
of  Congress  to  regulate  commerce  with  foreign  nations,  and 
between  the  several  States  and  with  the  Indian  tribes.  ^ 

II.     Its  Extent. 

It  extends  to  the  protection  of  the  lives,  limbs,  comfort  and 
quiet  of  all  persons,  and  may  exclude  from  introduction  into  the 
State  contagious  and  infectious  diseases;  may  make  inspection 
laws;  and  may  exclude  or  prevent  the  introduction  of  criminals, 
convicts,  paupers,  idiots,  lunatics,  and  others  likely  to  become  a 
burden  or  public  charge,  so  far  as  it  may  be  exercised  without 
interfering  with  the  power  of  Congress  over  the  subject  of  com- 
merce, hereinbefore  referred  to.^  The  precise  extent  of  this 
power,  it  is  "  difficult  to  define  with  sharp  precision,"  but  what- 
ever invades  the  domain  of  legislating  vested  exclusively  in 

'  Railroad   Company  v.  Husen,  5  Cases,  5  How.  504 ;  Beer  Company  v. 

Otto,  465;  Thorpe  v.  Rutland  &  Bur-  Massachusetts,  7  Otto,  — ;  Cooley  on 

lington  R.  R.  Co.,  27  Vt.  140 ;  North-  Const.  Lim.,  4th  Ed.  715. 

western  Fertilizing  Co.  t).  Hyde  Park,  'Railroad  Company  v.   Husen,   5 

Chicago  Legal  News,  Vol.  XI.  p.  81  Otto,  465 ;  Commonwealth  v.  Alger, 

(U.  8.  Supreme  Court,  October  Term,  7  Cush.  84;  Munn  v.  Illinois,  4  Otto, 

1878);  Patterson  v.  Kentucky  (U.  S.  113;  Thorpe  r.  Rutland  «&  Burlingtoa 

Supreme  Court,  October  Term,  1878),  R.  R.  Co.,  27  Vt.  149 ;  Cooley  on  Const 

Chicago  Legal  News,  Vol.  XI.  p.  183 ;  Lira.,  4th  Ed.  713  et  teq. 
Gibbons  v.  Ogden,  9  Wheat.  1 ;  License 


IN    THE    ORIGIlSrAL    AND    NEW    STATES.  247 

Congress  is  void,  no  matter  how  closely  allied  to  powers 
belonging  to  the  States.  ^  It  is  well  said,  that  as  the  range  of 
this  power  sometimes  comes  very  near  to  the  field  committed  by 
the  constitution  to  Congress,  it  is  the  duty  of  the  courts  to  guard 
vigilantly  against  any  needless  intrusion. ^ 

The  police  regulations  of  a  State  requiring  railroad  corpora- 
tions to  fence  their  roads,  or  in  default  thereof  to  pay  for  injuries 
to  live  stock  thereon,  applies  as  well  to  foreign  railroad  corpora- 
tions running  lines  of  railroad  in  the  State,  as  to  local  or  domestic 
corporations.  The  fact  that  such  statute  can  only  be  enforced 
within  the  State  where  enacted  does  not  alter  the  case.  A 
foreign  corporation  there  operating  a  railroad  is  subject  to  the 
statute  to  the  same  extent  as  local  corporations,  and  so  the  danger 
to  the  public  is  equally  great  from  one  and  the  other.  The  object 
is  not  only  to  protect  the  owners  of  liv^e  stock  from  loss,  but  also 
to  protect  the  public,  as  passengers,  from  injuries  resulting  from 
accidents  caused  by  running  against  and  over  live  stock  coming 
onto  the  roads.  Such  foreign  corporations  are  not  only  within 
the  act,  but  are  suable  in  the  State  by  service  on  their  agents. ^ 

III.     This  Power  was  in  the  Original  States. 

The  police  power  belonged  to  the  several  original  States  of  the 
Union,  before  and  at  the  time  of  the  adoption  of  the  national 
constitution,  and  except  in  so  far  as  its  exercise  by  them  may 
impair  the  right  of  Congress  to  regulate  commerce  as  conferred 
by  the  constitution,  it  was  not  surrendered  or  taken  away  from 
the  States  by  the  adoption  of  the  same.'* 

lY.     And  by  Parity  of  Eight  is  in  the  New  States. 

It  follows  that  it  exists  in  the  new  States  to  the  same  extent 
as  in  the  old  ones,  from  their  admission  into  the  Union  on  an 
equal  footing  with  the  old,  or  original  ones.^ 

'  Railroad  Company  v.  Husen,  5  Husen,  5  Otto,  465 ;  TJ.  8.  v.  Reese,  3 

Otto.  465,  470,  472.  Otto,  214;    U.   S.   v.  Cruikshank,   2 

"  Ibid.  Otto,  542 ;  Patterson  v.  The  Common- 

3  Purdy  V.  New  York  &  New  Haven  wealth  (U.  S.  Sup.  Ct.,Oct.  Term,  1878), 
R.  R.  Co.,  61  N.  Y.  353.  XI.  Chicago  Legal  News  (Feb.  22d, 

4  Northwestern  Fertilizing  Co.  v.  1879),  p.  183;  Cooley  on  Const.  Lim., 
Hyde  Park,  Chicago  Legal  News,  Vol.  4th  Ed.  715. 

XL  p.  81  (U.  S.  Supreme  Court,  Octo-  '  Supra. 

ber   Term,  1878);    Railroad    Co.    v. 


248  INTER-STATE   RIGUTS   OF    EXECUTORS. 


CHAPTER    XXIV. 

DTTER-STATB   EIGHTS,    POWERS   AND   DUTIES    OF    EXECUTORS,    ADMINIS- 
TRATORS  AND    GUARDIANS. 

I.    Where  Letters  Testamentary  and  op  Administration  should 

BE  Granted. 
II.    The  Powers,  Liabilities  and  Duties  of  Executors  and  Adminis- 
trators ARE  Local. 

III.  Inter-State  Actions  by  and  against  Executors  and  Adminis- 

trators ON  Foreign  Judgments. 

IV.  Executors  and  Administrators  Suing  in  their  own  Right. 
V.    Non-Residence  and  Removal  from  the  State. 

VI.  Statutory  Power  to  Act  in  other  States. 

VII.  Wills;   Probate;  Validity  of.     How  Far  Binding  in  otheb 

States. 

VIII.  Guardians  of  Minors  and  Lunatics. 

IX.  Dower. 

X.  Jurisdiction  of  National  Courts  in  Inter-State  Probates. 

XI.  Pleadings  in  Inter-State  Suits  in  Probate  Matters. 

I.    Where  Letters  Testamentary  and  of  Administration 
SHOULD  BE  Granted. 

The  Place  of  Domicile.  The  proper  jurisdiction  in  which  to 
obtain  letters  testamentary  or  of  administration  is  in  the  State 
and  place  of  the  decedent's  domicile,  at  the  time  of  his  death,  i 

Ancillary  Letters.  If  there  be  assets  in  another  State  or 
States,  and  administration  be  obtained  there,  such  administration 
is  micill/iry  to  that  of  the  administrator  or  executor  acting  as 
such  at  the  place  of  the  decedent's  domicile,  at  and  immediately 
preceding  his  death.^ 

Excess  of  Assets.  But  although  it  is  a  general  principle  that 
administration  on  a  decedent's  estate  granted  elsewhere  than  in 

'Crosby  e.  Leavitt,  4  Allen,  410;         'Ibid.  And  see,  also,  Probate  Court 
Christy  v.  Vest,  36  Iowa,  285 ;  Cham-      v.  Kimball,  42  Vt.  320;  Chamberlin  «. 
berlin  c.  Wilson,  45  Iowa,  149 ;  1  Wil-      Wilson,  45  Iowa,  149. 
liams  on  Executors,  41)5,  et  seq.  Gtli 
Am.  Ed.  top  paging. 


WHERE    LETTERS    SHOULD    BE    GRANTED.  249 

the  State  of  decedent's  domicile  is  regarded  as  ancillary  to  the 
administration  of  the  domicile,  yet  it  is  nevertheless  the  law 
that  it  is  so  only  as  to  the  excess  of  assets  over  what  satisfies 
domestic  creditors;  and  inasmuch  as  every  State  has  the  right  ot 
directing  by  law  the  disposition  of  property  therein,  therefore 
property  in  a  State  belonging  to  a  non-resident  is,  on  his  decease, 
subject  to  be  disposed  of  under  the  laws  of  the  State,  and  to  be 
sold,  in  case  of  insolvency  of  the  estate  therein,  notwithstanding 
the  estate  be  solvent  in  the  State  where  the  decedent  died,  for  the 
creditors  are  not  bound  to  look  for  payment  in  a  foreign  juris- 
diction.^ 

Void  Letters.  If  administration  or  letters  testamentary  be 
granted  of  a  deceased  person's  estate  in  a  different  State  than 
that  of  his  last  and  true  domicile,  and  there  are  no  assets  of  the 
deceased  in  the  said  State  or  jurisdiction  in  which  the  letters  are 
thus  obtained,  then  such  letters  and  authority  are  totally  void,^ 
for  there  is  no  property  or  interest  of  the  deceased  therein  to 
confer  jurisdiction  on  the  court,  or  to  grant  administration  or 
testamentary  letters  upon. 

It  is  well  settled  that  an  administrator  of  a  deceased  person 
cannot  be  appointed  by  a  court  of  a  State  other  than  that  of  his 
domicile  at  his  death,  if  in  such  other  State  he  left  no  estate.^ 
And  the  fact  that  at  his  death  he  was  defendant  in  an  attach- 
ment suit  in  another  State,  wherein  property  of  his  was  attached 
and  in  the  custody  of  the  law,  will  not  alter  the  case  when  such 
property  has  been  receipted  for  to  account  to  the  officer  and 
removed  to  the  place  of  domicile  in  another  State.  The  appoint- 
ment of  an  administrator  where  the  suit  is  pending,  and  rendi- 
tion of  judgment  in  such  suit  against  him  under  sucli  circum- 
stances, are  equally  void.* 

Stirplus  of  Assets  to  be  Turned  Over  to  Principal  Adminis- 
trator or  Executor  by  Ancillary  Administrator.  If  there  be 
ancillary  administration  also,  that   is   administration  in  some 

>  Gilchrist  v.  Cannon,  1  Cold.  581 ;  «  Christy  v.  Vest,  36  Iowa,  285. 

Goodall  V.   Marshall,   11    N.  H.  88;  »  Crosby  v.  Leavitt,  4  Allen,  410; 

Churchill  v.  Boydeu,  17  Vt.  319;  Ste-  Miller  v.  Jones,  26  Ala.  247;  Grimes 

vens  V.  Gaylord,  11  Mass.  256.    And  v.  Talbert,   14  Md.   169;    Thumb  v. 

see,  also,  Perkins'  note  to  Williams  Gresham,  2  Met.  (Ky.)  306;  Brough- 

on  Executors,  vol.  III.,  p.  1763,6th  ton  «.  Bradley,  34  Ala.  694;  Jeft'erson- 

Am.  Ed.    See,  further,  Miner  v.  Aus-  ville  R.  R.  Co.  c.  Swayne,  26  Ind.  447. 

tin,  45  Iowa,  221.  *  Crosby  v.  Leavitt,  4  Allen,  410. 


250  INTER-STATE    RIGHTS    OF    EXECUTORS. 

other  State  than  that  of  the  decedent's  domicile,  in  which  other 
State  there  are  assets,  then  this  ancillary  administration  is  ser- 
vient to  the  other,  which  other  is  the  principal  administration, 
and,  therefore,  when  local  claims,  liens  and  legacies  of  a  local 
character  are  satisfied  out  of  the  assets,  as  also  costs  and  charges 
of  administration,  the  residue  of  the  estate  in  the  hands  of  the 
ancillary  administrator  will  be  reqiired,  by  the  court,  as  a  usual 
course,  to  be  handed  over  to  the  administrator  of  the  domicile 
for  distribution  under  the  law  thereof.^     Payment  of  a  debtor  to 

a  foreign  administrator  will  not  discharge  him  from  the  debt.' 

t 

II.    The  Powers,  Liabilities  and  Duties  of  Executors,  Admin- 
istrators AND  Guardians  are  Local. 

Are  Local  to  the  State  wherein  Granted.  The  rights,  powers 
and  duties  of  administrators  of  deceased  persons  are  co-extensive 
only  in  a  territorial  point  of  view  with  the  territorial  boundaries 
of  the  State  in  which  their  letters  testamentary,  or  letters  of 
administration,  are  obtained;  they  do  not,  in  law,  extend  beyond 
such  jurisdiction,  or  into  that  of  any  other  State  or  States,  by 
virtue  of  their  own  force,  or  in  virtue  of  the  force  or  power  of 
the  government  or  laws,  from  which  such  letters  emanate.  They 
do  not  confer  without  more  a  right  or  title  to  property,  although 
it  be  of  a  personal  or  movable  nature;  nor  right  of  property  or 
control  of  any  interests,  or  debts,  or  choses  in  action,  so  situated 
within  other  States,  or  power  to  release,  transfer,  or  discharge 
the  same;  nor  right  to  institute  and  maintain  in  their  official  or 
fiduciary  capacity  any  action  or  suit  in  the  courts  of  another 
State  or  States,  than  the  one  where  such  letters  are  granted; 
and,  therefore,  no  such  powers  or  authority  can  be  exercised  by 
such  administrators  outside  of  the  local  jurisdiction  of  the  State 
from  which  their  powers  are  obtained,  or  over  property  or  rights 
situated  outside  of  such  local  jurisdiction,  by  mere  force  of  their 
respective  original  letters  or  grant,  but  can  only  be  exercised  and 
enforced  by  them  in  such  other  State,  by  virtue  of  authority  of 
law  existing  in  such  other  State  or  States,  if  such  law  there  be, 
permitting  the  exercise  of  such  powers  and  conferring  such 
rights  upon  administrators  of  other  States;'  and  if  there  be  no 

•  Probate  Court  v.  Kimball,  42  Vt  *  Young  v.  O'Neal,  8  Sneed.  55. 

320;  Lowt).Bartlett,8Allen,  2o9;Ela  «  McClure  v.  Bates,  12  Iowa,  77; 
D.  Edwards,  13  Allen,  48.  Karrick  v.  Pratt,  4  Q.  Greene,  144; 


DUTIES    OF    EXECUTORS    ARE    LOCAL.  251 

such  law  in  such  other  State,  then  letters  of  administration  must 
be  had  therein,  in  accordance  with  the  laws'  thereof,  to  confer  the 
right  of  property,  or  control  of  property,  of  the  decedent,  or 
riglit  of  action  in  regard  thereto,  in  the  courts  of  such  other 
State,  upon  an  administrator  of  the  deceased;  and,  in  so  doing, 
the  administrator  to  whom  grant  of  letters  is  made  in  such  other 
State  must  execute  bonds  therein  and  take  tlie  oath  of  office,  and 
otherwise  comply  with  all  the  requirements  of  the  local  laws 
there  in  force,  irrespective  of  any  action  in  that  respect  which 
may  have  been  had  in  any  other  State  or  States,  and  this,  too, 
whether  the  persons  to  whom  the  grant  is  made  be  the  same 
persons  to  whom  letters  had  before  issued  in  the  State  where 
"first  granted,  or  be  a  different  person  or  persons. i 

Some  Exceptions  in  Louisiana.  In  Louisiana,  however,  it  is 
held  that  the  title  of  an  administrator  being  legal  at  the  domi- 
cile of  the  deceased,  confers  on  the  possessor  power  to  pursue 
and  recover  the  property,  if  abstracted  from  his  possession  and 
carried  into  other  jurisdictions  or  States. ^ 

Not  Liable  to  Suits  in  other  States.  Administrators  and  execu- 
tors are  not  liable  to  suit  in  any  other  jurisdiction,  sovereignty 
or  State  than  the  one  in  which  their  authority  is  granted,  for 
assets  coming  into  their  hands  lawfully  in  their  fiduciary  capa- 

PicquetD.  Swan,  3Mas.469;  Vaughan  259;   Kerr  v.  Moon,  9   Wheat.  565; 

V.  Northup,  15  Pet.  1 ;  Smith  v.  Webb,  Dixon  v.  Ramsay,  3  Cr.  319, 323 ;  Arm- 

1  Barb.  231 ;    Vermilya  v.   Beaty,  6  strong  v.  Lear,  12  Wheat.  169 ;  Dick- 

Barb.  429;  Doe  v.  McFarland,  9  Cr.  inson  v.  McCraw,  4  Rand.  (Va.)  158; 

151;  Young  v.  O'Neal,  3  Sneed,  55;  Thompson  v.  Wilson,  2  N.  H.  291; 

Henderson  v.  Rost,  15  La.  Ann.  405.  Glenn  v.   Smith,   2  Gill   &   J.    493; 

Nor  can  a  public  administrator  of  one  Goodwin  v.  Jones,  3  Mass.  514;  Bor- 

State  maintain  a  suit  in  the  courts  of  den  v.  Borden,  5  Mass.  67;  Stearns  v. 

such  State  on  a  policy  of  insurance  Burnham.  5  Greenl.  261 ;  Stevens  v. 

issued  by  an  insurance  company  of  Gaylord,  11  Mass.  256;    Langdon  v. 

another  State.    His  powers  and  duties  Potter,  11  Mass.  313 ;  Riley  v.  Riley, 

are  confined  to  assets  and  rights  found  3  Day,  74;   Trecothick  v.  Austin,  4 

in  the  jurisdiction  where  his  letters  Mas.  16;  Dangerfleld  ?;.  Thruston,  20 

are  granted.    Union  Mut.  Life  Ins.  Martin,  232;  Holmes  v.  Remsen,  20 

Co.  V.  Lewis,  U.  S.  Sup.  Court,  Chicago  John.  229 ;  McClure  v.  Bates,  12  Iowa, 

Legal  News,  vol.  XI.  p.  139,(1878).  77;  Karrick  «.  Pratt,  4  G.  Greene,  144. 

See,  also,  1  Williams  on  Executors,  See,  also,  1  Williams  on  Executors, 

419,  6th  Am.  Ed.  note  u.  419,  6th  Am.  Ed.  note  u. 

'  Smith  10.  Union  Bank  of  George-         *  Crawford  v.  Graves,  15  La.  Ann. 

town,  5  Pet.  518 ;  Campbell  v.  Tousey,  243. 
7  Cow.  64;  Fenwick  v.  Sears,  1  Cr.  ' 


252  INTER-STATE    RIGHTS    OF    EXECUTORS. 

city.  Every  grant  of  the  kind  is  strictly  confined  in  its  authority 
and  operation  to  the  territorial  limits  of  the  government  from 
which  it  emanates,  and  does  not  de  jure  extend  to  other  States. 
There  is  no  power,  by  virtue  of  it^  to  control  or  collect  assets  of 
the  deceased  in  other  States  than  that  wherein  the  grant  is  ob- 
tained. Any  authority  accorded  to  it  elsewhere,  that  is,  in  other 
States  or  countries,  is  done  as  mere  matter  of  comity,  which  may 
be  extended  or  witliheld  by  all  other  States,  according  to  their 
internal  policy  and  pleasure.  Such  administrator  or  executor  is 
bound  to  account  for  his  trust  to  the  tribunal  of  his  appointment, 
and  those  of  other  States  may  not  interfere  with  the  application 
of  those  assets  that  come  to  their  hands,  but  the  same  are  exclu- 
sively subject  to  the  law  and  the  tribunal  of  the  place  where  the 
letters  of  administration  or  testamentary  are  granted.  Nor  can 
he  be  sued  as  such  in  any  other  State,  if  there  found,  so  as  to  be 
served,  either  for  what  may  have  come  into  his  hand  as  such  admin- 
istrator or  executor,  by  heirs  or  legatees  claiming  distribution, 
or  by  creditors  of  the  deceased,  for  purposes  of  establishing  their 
debts  against  the  estate  or  administration.  Such  are  the  settled 
principles  of  the  law.^  The  right  to  sue  in  other  States  is  often 
exercised,  but  this,  either  by  compliance  first  with  some  local 
law  conferring  the  authority,  or  else  in  virtue  of  mere  comity, 
indicated  by  the  local  law  and  practice  in  the  courts  of  such  other 
State.3 

Suit  in  Administrator's  or  Executor's  own  Bight.    Although 
executors  and  administrators  cannot,  at  common  law,  in  mere 

'  Vaughan  v.  Northup,  15  Pet.  1 ;  a  judgment  obtained  by  them  in  a 

Fenwick  v.  Sears,  1  Cr.  259;  Dixon  u.  foreign  State,  inasmucli  as  they  need 

Ramsay,  3  Cr.  319;  Kerr  «.  Moon,  9  not  allude  to  their  fiduciary  capacity. 

"Wheat.  565 ;  Security  Ins.  Co.  v.  Tay-  Talmage    v.    Chapel,    16  3Iass.  71 ; 

lor,  2  Biss.  446;  Sparks  v.  "White,  7  Graeme  v.  Harris,  1  Dall.  4.'»6;  Nay- 

Humph.  86;  Brown  n.  Brown,  4  Edw.  lor  v.  Moody,  2  Blackf.  247;  Perkins 

Ch.  343;     Brookshire  v.  Dubose,  2  v.  "Williams.  2  Root,  462;    Smith  v. 

Jones  Eq.  276;  Noonan  v.  Bradley,  9  "Webb,  1  Barb.  231 ;  Boyd  v.  Lambeth. 

"Wall.  394;  Beckham  v.  "WiUkowski,  24  Miss.  433;  Kirkpatrick  v.  Taylor, 

64  N.  C.  464 ;  Sayre  v.  Helme,  61  Penn.  10  Rich.  L.  393 ;  Naylor  v.  JSIoffatt.  29 

St.  299;  Swatzel^j.  Arnold,  1  "Woolw.  Mo.  126;  "Vickery  v.  Beir,  16  Mich. 

883;  Riley  v.  Mosele}',  44  Miss.  37;  50.    See,  also,  1  "Williams  on  E.xecu- 

Stnne  V.  Scripture,  4  Lans.  186;  Pond  tors,  419  et  seq.,  6th  Am.  Ed.  note  «., 

V.  Makepeace,  2  Met.  114;  Cutter  «.  whore  this  subject  is  very  thoroughly 

Davenport,  1  Pick.  81;   Goodwin  v.  discussed. 
Jones,  3  Mass.  514    But  they  may  on         *  Supra. 


DUTIES    OF    EXECUTOKS    ARE    LOCAL.  253 

virtue  of  the  office,  bring  suits  in  the  courts  of  States  other  than 
the  one  wherein  the  letters  are  granted,  but  must  take  letters 
anew,  or  otherwise  conform  to  the  law  of  the  State  where  suit  is 
intended  to  be  brought;  yet,  when  an  executor  or  administrator 
has  been  regularly  made  plaintiff  in  a  judgment  recovered  by  the 
deceased  during  his  lifetime,  by  substitution  of  record  in  the 
State  where  his  letters  are  granted,  and  such  judgment  is  ob- 
tained, then  such  executor  or  administrator  may  sue  upon  such 
judgment  in  courts  of  other  States,  without  taking  o'H  letters 
testamentary  or  of  administration  therein,  for  the  right  of  action 
attaches  to  the  person,  and  not  to  the  office,  after  judgment,  and 
he  may  sue  thereon,  although  his  right  be  a  trust,  just  as  any 
other  trustee  may  sue  in  a  State  other  than  that  of  his  residence 
or  citizenship.  ^ 

Local  Letters  Procured  after  Suit  Commenced.  Though  an 
administrator  appointed  by  the  court  of  one  State  or  territory 
cannot  ordinarily  sue,  as  such,  in  the  courts  of  another  State  or 
territory,  without  taking  like  letters  therein,  or  in  some  way 
bringing  himself  within  the  statutory  provision,  if  any  there  be, 
of  the  latter  State,  permitting  the  same,^  yet  if  after  suit  actually 
commenced  he  procure  letters  of  administration  in  the  State 
wherein  the  suit  is  pending,  that  fact  may  be  brought  before  the 
court,  and  suit  will  be  allowed  to  proceed.  ^ 

Tlie  proper  method  of  showing  such  subsequent  grant  of  ad- 
ministration, according  to  the  rules  of  pleading  and  practice,  is 
by  a  supplemental  pleading;  but  if  done  by  an  amendment,  so 
called,  it  may  be  sustained.'* 

The  case  of  Swatzel,  Admr.,  v.  Arnold,  here  cited,  was  com- 
menced in  the  district  court  of  the  Territory  of  Nebraska,  by 
bill  to  foreclose  a  mortgage  given  to  the  complainant's  deceased 
intestate,  brought  by  Swatzel,  acting  in  virtue  of  letters  of  ad- 
ministration granted  to  him  in  the  then  Territory  of  Kansas. 
The  defendant  demurred,  alleging  for  cause  of  demurrer  that 
complainant  had  not  obtained  administration  in  Nebraska.  The 
demurrer  was  sustained.  Subsequently  the  complainant  obtained 
administration  in  Nebraska,  and  averred  that  fact  by  way  of  an 
amendment  to  his  bill,  filed  by  leave  of  the  court.     The  plaintiff 

'  Greasons  v.  Davis,  9  Iowa,  219, 225.  *  Swatzel  v.  Arnold,  1  "Woolw.  383. 

2  Swatzel  V.  Arnold,  1  Woolw.  383;  *  Ibid. 

Dixon  V.  Ramsay,  3  Or.  319. 


254  INTER-STATE    RIGHTS    OF    EXECUTORS. 

was  a  citizen  of  the  State  of  Missouri,  and  the  defendant  a  citi- 
zen of  Nebraska,  so  that  when,  at  this  stage  of  the  proceedings, 
Nebraska  became  a  State,  the  cause  went  into  the  circuit  court 
of  the  United  States  for  that  district  for  trial.  In  the  United 
States  circuit  court  defendant  demurred  to  the  bill  as  amended, 
for  the  reason  that  the  appointment  as  administrator  in  Nebraska 
was  after  proceedings  commenced.  In  disposing  of  the  demurrer 
the  un timeliness  of  the  appointment  as  administrator  was  not 
only  urged,  but  it  was  contended,  also,  that  the  amendment  was 
ineffectual  to  bring  the  subsequent  appointment  before  the  court; 
that  a  supplemental  pleading  was  the  required  practice;  but  the 
court,  Miller,  J.,  ruled  against  such  necessity,  conceding  at  the 
same  time  that  the  more  approved  or  general  practice  had  been 
a  supplemental  bill,  in  bringing  before  the  court  and  into  a  cause 
facts  or  circumstances  occurring  after  the  filing  of  the  original 
bill.  The  court  cited,  in  support  of  the  allowance  of  the  prac- 
tice hy  am£ndmenty  Story's  Equity  Pleadings  ^  and  Humphreys 
V.  Humphreysj^  from  which  it  seems  that  such  is  sometimes  the 
practice,  as  in  case  of  this  amendment  before  answer  filed.  The 
objection  for  want  of  local  letters  of  administration,  when  the 
foreign  letters  are  granted  in  the  State  of  the  late  domicile 
of  the  decedent,  goes  to  the  capacity  to  sue,  and  not  to  the  right 
of  the  administrator  to  the  subject  matter  of  the  suit;'  for  that 
is  well  settled,  that  a  payment  voluntarily  made  to  the  adminis- 
trator of  the  domicile  by  a  foreign  debtor  is  a  good  acquitance 
of  such  foreign  debt.* 

The  court,  in  Swatzel,  Admr.y  v.  Arnold^  lay  down  the  rule 
that  the  administrator  of  the  domicile  had  an  inchoate  riorht  to 
appointment  in  such  other  State  in  which  there  were  assets,  and 
that  a  local  administrator  then  appointed  would  be  required, 
after  satisfying  local  claims  and  costs,  to  pay  over  the  residue  of 
the  assets  to  the  administrator  of  the  domicile.^ 

'§8S5.  Richards,    1    Mas.  381.      Sec,   also, 

«  3  P.  Wms.  849.  Mackey  v.  Coxe.  18  How.  100,  104. 

'  Swatzel  V.  Arnold,  1  Woolw.  383,  «  Swatzel  v.  Arnold,  1  Woolw.  383, 

388,  389.  888,  and  citing  Stevens  v.  Gaylord.  11 

*  Swatzel  V.  Arnold,  1  Woolw.  383,  Mass.  255 ;     Harvey  «.  Richards,  1 

889,  citing  Lewis  v.  Doolitlle,  7  John.  Mas.  381 ;  Burn  v.  Cole,  1  Ambl.  415; 

Ch.  45;  Dawes  v.  Head,  3  Pick.  128;  Souimerville  c.  Sommerville,  5  Ves. 

Stevens  v.  Gaylord,  11  Mass.  256;  Da-  751,  791.    See,  also.  Probate  Court  v. 

vis  V.  Estey,  8  Pick.  475 ;  Harvey  c.  Kimball,  42  Vt.  330. 


DUTIES    OF    EXECUTORS    ARE    LOCAL.  255 

Inability  Removed  as  to  District  of  Columbia.  But  this  ina- 
bility to  sue  in  courts  of  other  States  and  jurisdictions  than  those 
of  the  States  in  which  their  letters  testamentarj  or  of  adminis- 
tration are  obtained  has  been  so  far  removed  as  to  ffive  the  rio-ht 
to  sue  in  the  courts  of  the  District  of  Columbia,  by  act  of  Con- 
gress of  June  24,  1812,  which  provides  "  that  it  shall  be  lawful 
for  any  person  or  persons  to  whom  letters  testamentary  or  of  ad- 
ministration hath  been  or  may  hereafter  be  granted  by  the  proper 
Authority  in  any  of  the  United  States,  or  the  tei-ritories  thereof, 
to  maintain  any  suit  or  action,  and  to  prosecute  and  recover  any 
claim  in  the  District  of  Columbia,  in  the  same  manner  as  if  the 
letters  testamentary  or  administration  had  been  granted  in  the 
District."! 

Ancillary  Administration.  An  appointment  made  where  there 
is  property  of  a  decedent  subject  to  administration,  and  at  a 
place  in  a  different  State  than  that  of  the  domicile  of  the  de- 
ceased, if  of  the  same  person  who  is  administrator  in  the  State  of 
the  domicile,  is  merely  ancillary  to  the  administration  of  the 
domicile,^  and  accountability  will  not  be  required  of  such  ancil- 
lary administrator,  at  the  place  of  such  appointment,  for  assets 
coming  to  his  hands  in  the  jurisdiction  of  the  principal  admin- 
istration. Nor  will  suit  lie  against  him  in  the  jurisdiction  or 
State  of  the  ancillary  appointment  for  debts,  by  creditors  or  by 
heirs  or  legatees,  to  be  paid  or  distributed  out  of  the  assets 
received  and  accountable  for  in  the  State  where  is  made  such 
original  or  principal  grant  of  administration. ^ 

Distribution.  Distributees  and  legatees  must  look  to  the 
foruin  of  administration  in  the  State  of  the  decedent's  domicile, 
where  there  are  two  such  administrations  granted  to  the  same 
person,  unless  otherwise  directed  as  to  the  local  assets,  in  the 
discretion  of  the  court  where  ancillary  administration  exists.^ 

Assets  First  Liable  to  Local  Claims.  But  such  assets  are  first 
liable  to  the  local  creditors  and  debts  within  the  jurisdiction  or 

'  Mackey  v.  Coxe,   18    How.   100,  Executors,  419.  et  seq.,  note  u,  6th  Am. 

103.  Ed. 

2  Porter  v.  Heydock,  6  Vt.  374.  *  Hapgood  c.  Jennison,  2  Vt.  294 ; 

'  Selectmen  of  Boston  v.  Boylston,  Richards  d.  Dutch,  8  Mass.  506 ;  Dawes 

2  Mass.  381 ;  Hapgood  t.  Jennison,  3  n.  Boylston,  9  Mas.  337,  356 ;  Harvey 

Vt.  294;  Probate  Court  c.  Matthews,  v.  Richards,  1  Mass.  381,  408;  1  Will- 

6  Vt.  269,  275.    See,  for  a  full  discus-  iams  on  Executors,  419,  note  «,  6th 

fiion  of  this  subject,  1  Williams  on  Am.  Ed. 


256  INTER-STATE    RIGHTS    OF    EXECUTORS. 

State  wherein  tliey  are  thus  administered,  and  the  residue  only 
will  be  turned  over  for  distribution  at  the  forum  of  the  dece- 
dent's domicile.  1 

Establishing  Claims  of  Creditors  and  Payment  Thereot. 
When  a  decedent's  estate  is  being  administered  in  different  States 
tlie  creditors  may  proceed  in  the  court  of  either  of  the  States  to 
establish  and  obtain  payment  of  their  claims,  but  if  the  estate 
is  unable  to  pay  in  full  all  the  claims  for  which  it  is  liable,  no 
one  ot  the  creditors  can  obtain  a  larger  payment  than  his  pro 
rata  share,  or  dividend,  although  his  claim  be  allowed  in  the 
courts  of  both  States;  any  amount  paid  in  one  State  will  be 
deducted  from  his  payments  as  for  the  whole  claim  made  to  him 
in  anotlier.' 

Order  of  Payment  of  Foreign  Judgments.  In  State  laws 
declaring  the  order  of  payment  in  probate  of  a  decedent's  debts, 
the  term  "judgments"  will  not  be  construed  to  include  foreign 
judgments  —  that  is,  judgments  existing  in  another  State  and 
not  put  into  judgment  in  the  State  wherein  the  assets  are  being 
administered.  Such  judgments  of  other  States,  though  entitled 
to  full  faith  and  credit  under  the  constitution  and  laws  of  the 
United  States  are  not  judgments  of  such  other  States,  and  though 
not  liable  there  to  any  objection  as  to  validity  as  evidence  of  a 
debt,  but  such  objections  as  would  invalidate  them  in  the  State 
where  rendered  are  not  of  the  same  grade  in  other  States  with 
domestic  judgments.  The  latter  are  liens,  in  certain  cases, 
whereas  the  former  cannot  be  in  the  nature  of  things.  To  allow 
them  equality  of  grade  would  be  to  divide  with  them  the  pro- 
ceeds of  judgment  liens  existing  under  domestic  judgments, 
thus  displacing  in  part  the  priority  ol  lien  of  such  domestic 
judgment.  3 

Public  Administrator.  The  case  cited  of  Union  Mutvul  Life 
Insurance  Company  v.  Lewis,  Public  Administrator  of  St. 
Louis  co,unty,  State  of  Missouri,  decided  by  the  supreme  court 
of  tiie  United  States,  at  the  October  term,  1878,  grew  out  of  a 
life  policy  issued  by  said  company,  a  corporation  of  the  State  of 
?.taine,  to  one  "William  Burton,  of  Milwaukee  city  and  county, 

I  Goodall  V.  Marshall,  11  N.  H.  88;  « Loomis  v.  Farnura.  14  N.  H.  119; 

Richards  p.  Dutch,  8  Mass.  506;  Low  Goodall  v.  Marshall  11  N.  H.  88;  Ty- 

V.  Bartlett,  8  Allen,  259 ;  Churchill  v.  lor  v.  Thompson,  44  Tex.  497. 

Boyden,  17  Vt.  319.    And,  see  supra.  »  McElmoyle  v.  Cohen,  13  Pet.  312. 


DUTIES    OF    EXECUTORS    ARE    LOCAL.  257 

in  the  State  of  Wisconsin,  and  who  died  in  said  city  of  Milwau- 
kee, and  never  having  resided  in  the  State  of  Missouri,  and  who 
had  no  money,  property,  paper,  or  other  estate  therein.  The 
Insurance  Company  having  an  agent  in  St.  Louis,  on  which  pro- 
cess was  had  under  the  statute  of  Missouri,  the  public  adminis- 
trator assumed  to  bring  an  action  on  the  said  life  policy  in  a  State 
court  of  Missouri  against  said  company.  The  suit  was  removed 
to  the  United  States  circuit  court,  and  judgment  of  said  court 
was  rendered  against  the  company,  and  thereupon  the  company, 
as  plaintiff  in  error,  carried  the  case  to  the  supreme  court  of 
the  United  States.  The  supreme  court  held  that  the  powers  of 
such  public  administrator,  as  an  oflScer  of  the  State  of  Missouri, 
were  local,  and  confined  to  the  matters  confided  to  him  by  the 
local  or  State  law,  and  did  not  extend  to  such  a  case.  That 
court  say,  Harlan,  J. :  "It  was  not  the  purpose  of  the  statute 
to  authorize  a  suit  by  a  public  administrator  in  Missouri  against 
a  foreign  corporation  doing  business  there  upon  the  contract;  not 
made  or  to  be  executed  in  that  State  with  a  citizen  of  another 
State  who  neither  resided,  nor  died,  nor  left  any  estate  in  Mis- 
souri. Without  discussing  the  validity  of  any  local  statute 
framed  for  such  purposes  as  are  imputed  by  this  -action  to  the 
Missouri  statute  of  1868,  it  is  sufficient  to  say,  that  the  present 
case  is  not  within  the  statute,  according  to  any  reasonable  inter- 
pretation of  its  provisions." 

III.     Inter-State   Actions    by   and   against   Executors   and 
Administrators   on  Foreign  Judgments. 

Action  of  Debt  on  Judgment.  It  seems  to  be  a  well  settled 
principle  of  the  law,  that  an  action  of  debt  will  not  lie  against 
an  administrator  in  one  State,  on  a  judgment  obtained  in  another 
State,  against  a  different  administrator  of  the  same  intestate 
appointed  under  authority  of  such  other  State. ^  An  adminis- 
trator cannot  do  any  act  that  will  affect  or  control  the  assets 
which  are  in  another  State,  inasmuch  as  his  own  authority  can- 
not extend  beyond  the  authority  or  jurisdictional  limits  of  the 
government  from  which  he  receives  it.     Where  there  are  two 

'  Stacey  v.  Thrasher,  6  How.  44;  Chenowith,  7  Ind.  211;  Lowe.  Bart- 
Aspden  v.  Nixon,  4  How.  467;  Mc  lett,  8  Allen,  259;  Ela  v.  Edwards,  13 
Lean  v.  Meek,  18  How.  16;  Slauter  v.      Allen,  48. 

17 


258  INTER-STATE    RIGHTS    OF    EXECUTORS. 

such  administrations,  they  are  equal  and  independent  of  each 
other  within  their  respective  jurisdictions,  if  there  be  no  local 
law  to  the  contrary.*  It  is,  to  some  extent,  difterent  as  between 
executors  of  tlie  same  testator,  some  of  whom  reside  in  one  State, 
and  others  in  another,  and  all  apjiointed  by  tlie  same  will,  buc 
each  qualifying  only  in  the  respective  States  where  they  reside, 
and  so,  also,  if  one  is  administrator  with  the  will  annexed. ^  la 
such  case,  it  is  said  that  although  in  a  suit  against  the  executor 
in  one  State  on  a  judgment  obtained  in  another  State,  and 
although  the  judgment  be  uot  conclusive^  yet  it  may  properly  be 
the  basis  of  an  action  and  go  in  evidence;  since  although  there 
is  no  privity  in  law,  between  administrators  of  a  common 
intestate,  in  different  States,  as  they  take  their  authority  exclu- 
sively from  the  laws,  there  is,  however,  a  privity  of  right  and 
official  identity  between  executors,  inasmuch  as  their  interest  and 
powers  emanate  from  their  testator,  and  tliat  judgment  against 
one  in  one  State  may  be  rightfully  brought  into  administration 
in  the  other  State  by  proper  proceeding  against  the  executor 
locally  existing  there;  and  that  if  not  a  subject  matter  of  recovery 
in  itself  in  such  other  State,  yet  it  may  go  in  evidence,  when  the 
suit  includes  also  the  original  demand,  on  which  such  judgment 
was  rendered,  to  show  that  such  demand  has  been  carried  into 
judgment  in  another  State  against  one  of  the  executors,  qualified 
in  such  other  State,  and  that  therefore  the  other  executors  are 
precluded  by  reason  of  such  judgment  from  pleading  prescrip- 
tion, or  the  statute  of  limitations,  in  reference  to  the  original 
cause  of  action,  when  such  judgment  in  another  State,  is  held, 
by  the  courts  of  i\\Q  forum  to  preclude  prescription,  or  the  run- 
ninir  of  the  statute.'  For  the  better  understanding  of  the  case 
cited,  it  may  be  proper  to  remark  that  the  suit  embodied  not 
only  judgment  against  the  executor,  but  also  one  rendered  against 
the  testator  in  his  lifetime,  as  also  on  several  bills  or  notes  not  nego- 
tiable instruments,  and  that  by  the  law  of  Louisiana  where  the 
action  was  tried,  prescription,  as  there  called  (statutes  of  limita- 
tions), does  not  run  against  non-negotiable  paper,  and  this  circum- 
stance is  also  referred  to  as  in  part  the  ground  of  the  decision  of  the 

>  Stacey  «.  Thrasher,  C   How.  44;         *  Hill  v.  Tucker,  13  How.  458;  La- 
Aspden  v.  Nixon,  4  How.  467;   Mc-      tine  t).  Clements,  3  Kelly  426. 
Lean  r.  Meek,  18  How.  16.  »  Hill  v.  Tucker.    13   flow.    458; 

Goodall  V.  Tucker,  13  How.  469. 


EXECUTORS    SUIJS^G    Ilf    THEIR    OWN    RIGHT.  259 

Supreme  Court  of  the  United  States.  ^  That  court  say,  "Wayne, 
J.:  "When,  then,  the  court  below  rejected,  as  inadmissible  in 
evidence  iu  this  case,  the  judgment  obtained  in  Virginia  against 
Allen  and  Johnson,  the  executors  of  Kobinson  in  that  State,  we 
think  it  erred,  and  that  it  should  have  been  admitted  for  the  pur- 
pose mentioned.  The  court  also  instructed  the  jury,  that  the 
causes  of  action  in  this  suit  against  Tucker,  the  co-executor  of 
Allen  and  Johnson,  were  barred  by  prescription.  In  this  we 
think  there  was  error.  The  article  of  her  code  (the  Louisiana 
code)  upon  which  that  instruction  was  given,  3,505,  is  in  these 
words:  'Actions  on  bills  of  exchange,  notes  payable  to  order  or 
bearer,  except  bank  notes,  those  of  all  effects  negotiable  or  trans- 
ferable by  indorsement  or  delivery,  are  prescribed  by  five  years, 
reckoning  from  the  day  when  these  engagements  are  payable.' 
It  is  not  applicable  to  either  of  the  causes  of  action  set  out  in 
the  plaintiff's  petition."  And  that  as  to  the  one  note  put  into 
judgment  in  the  testator's  lifetime,  it  estops  the  executors  and 
obliges  them  to  pay  it  out  of  his  assets  wherever  they  may  be; 
and  so,  too,  if  administrators  (instead  of  executors),  in  different 
States,  as  administrators,  in  whatever  State  appointed,  are  privy 
to  the  intestate  and  are  estopped  by  judgment  against  him.^ 

IV.     Executors   and   ADanNiSTRATOKS   Suing   in   Their   Own 

KlGHT. 

May  Sue  in  Their  Own  Personal  Right.  But  notwithstanding 
a  foreign  executor  or  administrator,  in  the  absence  of  any  statute 
to  the  contrary,  must  take  out  letters  in  another  State  to  enable 
him  to  sue  therein,  yet  such  necessity  does  not  exist  in  reference 
to  an  executor  who  sues  in  another  State,  for  lands  therein, 
devised  to  himself  in  the  will  of  his  testator,  for  such  executor's 
right  is  derived  from  the  will,  and  therefore  letters  testamentary 
are  not  required  to  give  him  title  as  in  the  case  of  an  adminis- 
trator suing  for  j^ersonalty.  ^ 

Division  of  a  State.  And  if,  after  such  will  is  duly  recorded 
in  the  State  where  made  and  wherein  the  testator  died,  a  j^ortion 
of  the  State  be  erected  into  a  new  and  different  State,  it  is  not 
necessary  to  the  validity  of  the  will  as  to  lands  situated  in  such 

1  Hill  V.  Tucker,  13  How.  468.  «  Lewis  v.  McFarland,  9  Cr.  151, 

2 13  How.  467,  468.  153. 


2G0  INTER-STATE    RIGHTS    OF    EXECUTORS. 

new  State  that  it  be  subsequent! j  recorded  therein.  *  And  so^ 
too,  in  Maryland  and  other  of  the  States,  a  foreign  executor  may 
enforce  by  suit  in  his  own  name,  in  the  State  court,  a  judgment 
of  a  court  of  anotlier  State  recovered  by  him,  as  such  executor 
where  his  letters  testamentary  were  granted,  and  may  also  recover 
upon  liabilities  created  to  himself;  '  although  the  rule  exists 
there  as  generally  elsewhere,  that  a  foreign  executor  or  adminis- 
trator cannot  by  mere  force  of  such  foreign  authority  act  as  such, 
or  administer  the  assets  of  his  decedent  in  said  State; '  for  the 
courts  or  laws  of  one  State  cannot  confer  authority  of  an  official 
or  fiduciary  character  to  be  exercised  over  property  in  another 
State.  Laws  have  no  extra-territorial  force  in  themselves;  *  but 
such  authority  may  be  exercised  in  other  States  if  permitted  by 
the  laws  thereof.'*  Thus,  under  the  statute  in  Pennsylvania 
allowing  the  sale  and  transfer  of  capital  stocks  of  a  decedent,  by 
his  executor,  upon  registration  by  him  of  the  will  in  the  proper 
office  in  Pennsylvania,  duly  probated  in  the  court  of  anotlier 
State  where  decedent  resided  at  the  time  of  his  death,  it  is  held 
that  a  foreign  executor  may  make  such  sale  or  transfers  of  stocks 
of  Pennsylvania  corporations,  and  that  the  corporation  is  not 
under  the  necessity  of  ascertaining  if  the  will  confers  such  power, 
for  the  power  is  derived  from  the  local  law.*' 

"When  a  foreign  executor  or  administrator  sues  upon  a  judg- 
ment of  another  State  rendered  in  favor  of  himself,  he  sues  in 
his  own  right,  for  that  which  is  his  own  in  his  representative 
character,  as  was  held  in  the  case  cited  above;  '  for  although  such 
judgment  may  have  been  rendered  on  a  demand  due  tlie  estate, 
yet  that  demand  is  merged  in  the  judgment,  and  the  debt  is  then 
due  to  him,  and  may  be  enforced  by  him,  although  held  by  him 
in  his  trust  character.  ^ 

»  Lewis  «.  McFarland,  9  Cr.  151, 153.  'Sheldon  v.  Rice,  80  Mich.  296  j 

»  Barton  v.  Higgins,  41   Md.  539.  Turner  v.  Linam,  55  Geo.  253. 

And  they  need  not,  in  such  suit,  aver  *  Sheldon  v.  Rice,  30  Mich.  296. 

probate    of   the  will,  either  in  the  *  Williams  «.  Pennsylvania  R.  R, 

courts  of  such  other  country  or  of  the  Co.,  9  Phila.  298 ;  Turner  v.  Linam, 

State  where  suit  is  brought.    Leland  55  Geo.  253. 

«.  Manning,  4  Hun,  7;  Smith  V.Webb,  •Williams  v.  Pennsylvania  R.  R 

1  Barb.  230;  Trotter  v.  White,  10  S.  &  Co.,  9  Phila.  298. 

M.  607 ;    Lawrence   v.   Lawrence,  3  '  Wayland  v.  Porterfleld,   1    Met 

Barb.  Ch.  71 ;   Hall  v.  Harrison,  21  (Ky.)  038. 

Mo.  227 ;  Wayland  v.  Porterfleld,  1  » Ibid. 

Met.  (Ky.)  638. 


]SrON"-EESIDE]!ICE    AND    EEMOYAL    FROM    STATE.       261 

Assignee  of  Executor  or  Administrator.  Suit  By.  And  so, 
too,  where  an  executor  duly  qualified  to  act  as  such,  assigns  to  a 
person  a  promissory  note  belonging  to  the  deceased  at  his  death 
and  payable  to  such  decedent,  the  assignee  of  the  note  may  sue 
the  maker  thereof  in  another  State  without  the  necessity  of  let- 
ters testamentary  or  of  administration  being  had  in  such  latter 
State,  or  of  any  other  thing  preliminary  to  his  right  of  action 
therein  upon  such  note,  if  by  the  law  of  the  forum  actions  are 
maintainable  by  the  assignees  of  promissory  notes.  For  by  the 
assignment  the  personal  ownership  of  the  instrument  passes  to 
the  assignee,  and  to  sustain  an  action  thereon  he  need  only  show 
fiduciary  character  of  the  assignor  as  executor  by  the  proper 
record  of  his  appointment  of  the  will,  and  make  proof  of  the 
assignment.  1 

Note  Payable  to  Bearer.  Suit  on.  Likewise  an  administrator, 
whether  foreign  or  domestic,  may  maintain  suit  in  his  own  name 
although  it  be  with  the  additional  description  of  administrator, 
on  a  promissory  note  payable  to  bearer,  and  although  the  admin- 
istrator's intestate  owned  the  note  at  the  time  of  his  death;  and 
in  such  case  he  may  make  judgment  without  proof  of  his  repre- 
sentative capacity  as  administrator,  for  that  is  mere  matter  of 
description  and  is  immaterial,  inasmuch  as  being  the  holder  of 
the  note  so  payable  to  bearer,  he  is  thereby  vested  with  its  legal 
ownership,  and  might  sue  in  his  individual  name  without  refer- 
ence to  his  fiduciary  character  of  administrator. ^ 

In  the  language  of  Justice  Lyons,  in  Sanford  v.  McCreedy, 
"  in  such  case  it  was  entirely  unnecessary  that  the  plaintift*  should 
state  in  his  complaint  the  source  from  whence  he  derived  title  to 
the  note;  and,  having  stated  it,  it  was  not  incumbent  upon  him 
to  prove  it.  The  mere  production  of  the  note  on  the  trial  was 
fiufiicient  jprma  facie  to  entitle  him  to  judgment."^ 

Y.      KoN-KeSTOENCE   and    IvEilOVAL   FROM   THE    StATE. 

Removal  from  the  State.  The  powers  of  an  executor  who  has 
duly  qualified  and  is  authorized  to  act,  are  not  vacated  or  sus- 
pended by  his  removal  from  the  State,  if  there  be  no  statute  giv- 

"  Harper  t).  Butler,  2  Pet.  239.  ertson   v.    Crandall,    9    Wend.    425; 

»  Sanford  v.  McCreedy,  28  Wis.  102,  Bright  v.  Currie,  5  Sandf.  433. 

106 ;  Brooks  v.  Floyd,  2  McCord,  364 ;  » 28  Wis.  lOG. 
Patchen  v.  Wilson,  4  Hill,  57 ;  Rob- 


262  INTER-STATE    RIGHTS    OF   EXECUTORS. 

ing  such  effect  to  his  removal  ont  of  the  jurisdiction.^  And  by 
a  parity  of  reasoning  we  suppose  the  rule  equally  applicable  to 
administrators,  under  like  circumstances. 

The  case  just  cited,  Gri^th  v.  Frazier^  was  one  in  which  the 
question  arose  in  this  way:  An  executor  duly  appointed  and 
qualified  in  South  Carolina,  where  he  resided,  removed  from  the 
State  after  his  appointment  and  qualification.  The  ordinary,  in 
whom  resided  the  probate  powers,  regarded  the  removal  of  the 
executor  from  the  State  as  having  the  eifect  of  vacating  his  office, 
and  thereupon  assumed  to  appoint  another  in  his  stead.  The 
supreme  court  of  the  United  States,  Marshall,  C.  J.,  said,  in 
delivering  the  opinion:  '^Tlie  appointment  of  an  executor  vests 
the  whole  personal  estate  in  the  person  so  appointed.  He  holds 
as  trustee  for  the  purposes  of  the  will,  but  he  holds  the  legal  title 
in  all  the  chattels  of  the  testator.  He  is,  for  the  purpose  of 
administering  them,  as  much  the  legal  proprietor  of  those  chattels 
as  was  the  testator  himself  while  alive.  Tiiis  is  incompatible 
with  any  power  in  the  ordinary  to  transfer  these  chattels  to  any 
other  person  by  the  grant  of  administration  on  them.  His  grant 
can  pass  nothing;  it  conveys  no  right,  and  is  a  void  act.  If  the 
ordinary  possesses  no  power  to  grant  administration  where  an 
executor  is  present  performing  his  duty,  what  difference  can  his 
absence  make,  provided  tliat  absence  does  not  disqualify  him 
from  executing  his  trust?  *  "*  *  It  would  seem  that  he  is 
'potentially  present,  though  personally  absent." 

In  this  case  a  judgment  had  been  revived,  and  execution  sale 
thereon  was  made,  in  proceedings  against  the  administrator  thus 
illegally  appointed,  which  gave  rise  to  the  suit,  as  involving  the 
validity  of  the  sale.     The  judgment  and  sale  were  .idjndged  void. 

If  there  is  no  law  of  the  State  requiring  an  administrator  to 
be  a  resident  of  the  State  wherein  letters  of  administration  are 
granted,  then  his  removal  therefrom  and  becoming  a  citizen  of 
a  different  State,  after  the  granting  of  his  letters,  does  not  vacate 
or  affect  the  validity  of  the  same. 

Suit  in  United  States  Circuit  Court.  Every  citizen  has  a  right 
to  change  his  citizenship  from  one  State  to  another  at  pleasure, 
and  if,  having  obtained  administration  of  the  estate  of  a  dece- 
dent from  the  courts  of  a  State  in  which  he  at  the  time  resides, 

'  Griffith  t>.  Frazier,  8  Cr.  8,  23. 


AUTHOEITY    TO    ACT    ITT    OTHER    STATES.  263 

he  afterwards  removes  liis  residence  into  another  State  and  be- 
come a  citizen  thereof,  his  right  as  administrator  to  sue  a  citizen 
of  the  State  of  his  former  residence  for  liabilities  due  his  dece- 
dent in  the  circuit  court  of  the  United  States  for  the  district 
wherein  the  person  sued  resides,  is  not  affected  by  the  fact  that 
his  legal  capacity  as  administrator  is  the  creature  of  the  State 
wherein  the  suit  is  brought.  The  right  so  to  sue  is  a  personal 
one,  and  the  capacity  of  administrator  being  attached  to  the 
person  of  the  plaintiff  does  not  take  it  away.^  And  it  does  not 
matter,  to  the  contrary,  that  the  intestate  was  a  citizen  of  the 
same  State  with  the  defendant  and  if  still  alive  could  not  sue  in 
the  Federal  court;  nor  is  the  status  of  the  parties  altered  as  to 
the  place  of  suit  by  the  fact  that  the  creditors  or  legatees  of  the 
decedent  are  citizens  of  the  same  State  with  the  defendant. ^ 
The  legal  interest  in  the  choses  in  action  of  a  decedent  who 
died  intestate  is  conferred  on  his  administrator  by  virtue  of  ap- 
pointment as  such,  and  therefore  his  personal  right  of  suing  in 
the  Federal  court  is  in  no  wise  affected  by  that  right  having 
come  to  him  through  the  State  court  of  the  State  wherein  he 
sues  in  a  court  of  the  United  States.^ 

yi.     Statutory  Authoeity  to  Act  in  Other  States. 

Statutory  Authority  in  Other  States.  In  some  of  the  States 
foreign  executors  and  administrators  may  sue  by  virtue  of  the 
local  statute,  either  unconditionally,  as  in  actions  by  individual 
persons,  or  else  under  such  terms  as  the  statute  prescribes.*  In 
Ohio  such  statutory  right  exists,  and  letters  properly  authenti- 
cated under  the  act  of  Congress  are  evidence  of  such  fiduciary 
capacity."  In  Illinois  such  statutory  right  exists.^  So,  also,  in 
!New  Jersey.'' 

Foreign  Executors  and  Administrators,  Suit  by.  In  Wiscon- 
sin, where  there  is  a  statute  allowing  foreign  executors  or  admin- 
istrators of  deceased  persons,  who  were  not  at  their  death  residents 

1  Rice  V.  Houston,  13  Wall.  66.  Bank  of  United  States,  9  Wheat.  738. 

«  Rice  V.  Houston,  13  "Wall.  66 ;  Coal  ^  Rjce  ^_  Houston,  13  Wall.  66. 

Co.  «.  Blatchford,  11  Wall.  172;  Mc  *  Price  «.  Morris,  5  McLean,  4. 

Nutt  B.  Bland,  2  How.  9;   Browne  «.  'Ibid. 

Strode,  5  Cr.  303;  Chappedelaine  v.  « R.  S.  of  111.  1874,  §  42,  p.  112. 

Dechenaux,  4  Cr.  306;    Childress  v.  ">  Rev.  of  1877,  §  23,  p.  757. 
Emory,  8  Wheat.  642,  069 ;  Osborn  v. 


264  INTEE-STATE   RIGHTS   OF    EXECUTORS. 

of  the  State,  to  bring  suits  in  the  courts  of  said  State  on  filing 
in  the  probate  court  of  the  county  where  suit  is  to  be  brought  a 
copy  of  their  authority  to  act  as  such,  it  is  held  that  before  the 
filing  thereof,  their  inability  to  sue  is  mere  matter  of  disability, 
and  not  of  right,  and  that  therefore  no  new  letters  are  necessary 
to  confer  a  right  to  the  subject  matter  of  the  suit  involving  assets, 
since  such  right  inures  to  the  executor  or  administrator  by  virtue 
of  his  foreign  appointment ;*  and  that  such  disability  may  be 
cured  after  action  brought,^  and  can  be  taken  advantage  of  by 
plea  in  abatement  only.^ 

Where,  by  the  statute  of  a  State,  foreign  executors  and  admin- 
istrators are  allowed  to  sue  in  its  courts,  their  authority  to  act 
as  such  is  determinable  by  the  laws  of  the  State  wherein  they 
profess  to  have  been  appointed.* 

VII.    Wills;   Pbobatb;   YAUDrrY  or.     How  fab  Binding  in 

OTHER  States. 

The  probate  and  establishment  of  wills  duly  done  and  perfected 
in  the  court  of  the  proper  jurisdiction  of  one  State  is  valid  and 
binding  in  the  courts  of  every  other  State,  when  collaterally 
brought  in  question,  so  long  as  the  record  thereof  remains  in 
force;"*  except  as  affecting  the  title  to  real  estate  lying  in  such 
other  State,  in  which  case  the  will  must  be  established  in  accord- 
ance with  the  laws  of  the  State  where  the  land  is  situated.^  But 
when  the  law  of  the  locality  allows  probate  in  accordance  with 
the  laws  of  another  State,  and  in  such  other  State,  or  the  wit- 
nessing and  execution  thereof,  in  accordance  with  the  laws  of 
any  other  State  wherein  the  same  is  made,  than  a  compliance 
therewith  is  essentially  a  compliance  with  the  law  where  the  land 
is  situated.' 

Federal  Courts  Cannot  Take  Proof  of  Wills.  The  federal 
courts,  having  no  power  to  make  probate  of  wills,  are  bound  by 

>  Smith  V.  Peckham,  39  Wis,  414,  642,  704;  Gaines  v.  Hennen,  24  How. 

418.  553, 615. 

«  Smith  V.  Peckliam,  39  Wis.  414,  «  Kerr  v.  Moon,  9  Wheat.  565. 

418;  Sabine  v.  Fisher,  37  Wis.  376.  '  Secrist  v.  Green,  8  Wall.  744;  Car- 

'  Smith  V.  Peckham,  39  Wis.  414,  penter  v.  Dexter,  8  Wall.  513,  531 ; 

418.  Cbeever  v.  Wilson,  9  Wall.  108;  Pen- 

*  Newton  v.  Cocke,  5  Eng.  169.  nington  v.  Gibson,   16  How.  65,  80; 

» Gaines  v.  New  Orleans,  6  Wall.  Langdon  v.  Goddard,  2  Story,  267. 


wills;  probate;  validity  of.  265 

the  action  of  the  State  courts  in  that  respect,  and  cannot  enter- 
tain an  original  bill  to  review  or  set  aside  the  probate  of  a  will 
as  havinsr  been  done  contrary  to  law.^ 

•  State  Courts.  The  jurisdiction  of  probate  of  wills  belongs  ex- 
clusively to  the  courts  of  tlie  several  States  and  territories.  ^ 

When  Wills  Probated  in  Other  States  are  Evidence.  Wills 
probated  in  another  State,  according  to  the  laws  thereof,  are  evi- 
dence, except  as  to  the  realty,  in  the  courts  of  States  where  the 
record  of  such  probate  is  produced  and  offered  therewith,  duly 
autlienticated  according  to  the  laws  of  Congress  of  1790  in  ret- 
erence  to  proof  of  records  and  judicial  proceedings  of  States  in 
courts  of  otliers  of  the  States.^  But  to  operate  on  the  title  to 
lands,  they  must  be  executed  and  probated  according  to  tlie  laws 
of  the  forum  where  thus  offered  in  evidence,  or  must  otherwise 
satisfy  the  requirements  of  the  local  law.* 

Devise  to  Minors.  In  Louisiana,  a  devise  by  a  foreign  testator, 
established  in  another  State,  of  property  situated  in  Louisiana, 
to  minors  resident  therein,  and  who  are  under  the  tutorship  or 
guardianship  of  their  parents,  will  be  administered  by  such 
guardians,  under  the  usual  supervision  of  the  proper  court,  not- 
withstanding a  provision  in  the  will  appointing  or  requiring  to 
be  appointed  special  functionaries  to  control  and  manage  the 
property  during  the  nonage  of  the  devisees.  For  although  such 
foreign  bequest  is  conclusive  to  confer  the  title  of  the  testator  to 
property  in  said  State,  when  properly  established, ^  yet  it  cannot 
alter  or  change  the  legal  or  practical  manner  of  administering 
the  same  which  is  provided  by  the  laws  of  Louisiana.  So  much' 
of  the  will  as  seeks  to  thus  provide  a  practical  means  of  admin- 
istering the  property  different  from  that  of  the  law  of  \hQ  forum 
will  be  regarded  simply  as  if  never  made.^  Nor  can  an  executor 
of  a  foreign  testator  execute  his  office  in  Louisiana  under  the  will, 
or  under  foreign  appointment.  This  authority  must  emanate 
from  the  local  court  of  the  State.' 

'  Fourvergne  ®.  New  Orleans,  18  *  Succession  of  Butler,  Chi.  Legal 

How.  470.  News,  Vol.  XI.,  52,  (Sup.  Ct.  of  La.) 

^  Langdon  ts.  Goddard,  2  Stoiy,  267.  *  Succession  of  Fourcher,  Marquise 

3  Newman  ®.  Willett,  53  111.  98;  K^-  de  Circe,  Chi.  Legal  News,  Vol.  XL, 

person  v.  Bolton,  29  Ark.  418.  p.  52.     (Sup.  Ct.  of  La.) 

*  Potters.  Titcomb,  22  Maine,  300;  ''  Succession  of  Butler,  Clii.  Legal 

Ives  V.  Allyn,  12  Vt.  589;  Helms  v.  News,  Vol.  XL,  p.  52. 
Rookesby,  1  Met.  (Ky.)  49. 


266  INTER-STATE    RIGHTS    OF    GUARDIANS. 

To  Pass  Lands  in  Another  State.  Although,  as  a  general  prin- 
ciple, to  pass  lands  in  another  State,  a  will  mnst  be  made  and 
evidenced  in  accordance  with  the  law  of  the  State  wherein  the 
lands  are  situated,  yet  where,  in  snch  State  of  the  loci  rei,  there' 
is  a  statute  declaring  that  wills  devising  land  in  such  State,  but 
executed  abroad,  and  proved  according  to  the  laws  of  the  country 
in  which  executed,  and  so  duly  certified  under  seal  of  the  court  or 
officer  taking  the  proof,  and  properly  authenticated  under  the  act 
of  Congress,  shall  be  admitted,  and  shall  be  of  force  in  the  State 
where  the  lands  lie,  and  shall  be  good  and  sufficient  evidence 
therein  to  pass  real  estate  under  such  devise,  then  compliance 
with  the  manner  of  local  proof  and  execution  of  wills  is  not  re- 
quired, but  such  foreign  will  passes  the  title  as  would  a  regularly 
executed  and  proven  local  will.' 

Execution  of  Wills.  Eeal  Estate.  The  sufficiency  of  a  will, 
and  of  its  execution,  as  also  the  capacity  of  the  testator  to  make 
it,  so  as  to  pass  real  estate  devised  therein,  depends  upon  the  law 
of  the  State  wherein  the  property  is  situated.'  And  in  Missouri, 
it  is  held  that  when  a  will  is  made  and  executed,  proven  and  re- 
corded in  anotlier  State,  in  tlie  same  manner  required  by  the  laws 
of  Missouri,  then  a  copy  thereof,  duly  authenticated  and  recorded 
in  Missouri,  in  the  proper  office,  is  sufficient  evidence  to  pass 
real  estate.' 

VIII.     Guardians  of  Minors  and  Lunatics. 

Minor's  Domicile.  The  domicile  of  a  minor  is  that  of  his 
place  of  nativity,  until  changed  by  his  guardian  or  parents. 

Custody  of  Ward.  Therefore,  as  between  a  guardian  appointed 
at  the  place  of  his  original  domicile  and  one  appointed  in  another 
State,  there  being  no  other  cause  for  a  diffiirent  course,  the  cus- 
tody of  a  child  will  be  decreed  to  the  guardian  of  the  original 
domicile^  and  the  jurisdiction  of  a  court  of  general  jurisdiction 
to  control  the  custody  of  such  child,  and  decide  the  question,  is 
not  impaired  by  an  order  appointing  a  guardian,  but  is  paramount 
thereto.* 

Guardians'  Pdwers  Local.    The  rights  and  powers  of  guardians 

'  Doe  f).  "Woodj-,  4  McL.  75.  »  Applegate  c.  Smith,  31  Mo.  16fi. 

» Applegate  v.  Smith,  31  Mo.  1G6;  <  Woochvorth  v.  Spring,  4  Allen, 
Story's  Conf.  of  Laws,  §  474.  321. 


GUARDIANS    OP    MINORS    AND    LUNATICS.  267 

are  local,  and  cannot  be  exercised  over  their  wards  in  other  States, 
except  as  permitted  by  the  courts  thereof.^ 

Domicile  Changes  with  that  of  the  Parents.  But  although  the 
domicile  of  a  minor  is  the  place  of  his  birth,  if  that  be  the  domicile 
of  his  parents,  and  so  remains  as  long  as  they  there  reside,  yet 
his  domicile  during  his  minority  follows  theirs,  so  that  if  theirs 
is  changed,  his  is  changed  also.^ 

Marriage  of  the  Mother.  But  on  the  death  of  the  father,  if  the 
mother  marries  again,  she  has  no  such  right  of  control  of  the 
minor  children  as  will  enable  her  to  change  their  domicile  intO' 
another  State,  where  the  laws  of  descent  are  different  as  to  their 
property.  3 

Guardian  of  Lunatic.  Where  the  same  person  is  appointed 
committee  of  a  lunatic  in  two  different  States,  whose  person  was- 
in  one  State,  and  wliose  whole  property  was  in  the  other,  and  the 
appointment  being  first  made  in  the  State  of  the  lunatic's  domi- 
cile, it  is  held  that  the  second  appointment  was  but  auxiliary  to 
the  other,  and  that  the  liability  to  account  was  in  the  court  of 
the  State  of  the  first  appointment;^  and  that  suit  therein  against 
a  surety  of  the  committee  was  maintainable  for  the  assets  by  the 
administrator  of  the  lunatic  afterwards  deceased.  ^ 

Suit  by  Lunatic.  A  lunatic  may  sue  in  another  State  by  his 
next  friend  on  a  judgment  recovered  elsewhere.^ 

Guardians  of  Minors'  Property.  Courts  of  a  State  have  power 
to  appoint  guardians  of  the  property  therein  situated,  belonging 
to  minors  who  are  residents  of  another  State,  and  whose  persons 
are  not  present  in  the  State  thus  making  such  appointments. 
Jurisdiction  of  their  persons  is  not  essential  to  appointing 
guardians  over  their  property  which  is  within  the  jurisdiction  of 
the  court  making  the  appointment.' 

Decree  and  Sale  of  Lands  Procured  by  a  Foreign  Guardian. 
"Where,  by  statute,  a  foreign  guardian  is  authorized  to  act  as 
such,  upon  producing  and  filing  record  evidence  of  his  appoint- 
ment, and  such  evidence  is  accordingly  filed  as  the  statute 
requires,  in  the  probate  court  of  a  State  wherein  the  wards  of 

'  Woodworth  v.  Spring,  4  Allen,  *  Commonwealth    v.    Rhoads,    37 

321.  Penn.  St.  60. 

2  Hart  V.  Lindsey,  17  N.  H.  235.  »  Ibid. 

«  Mears  v.  Sinclair,  1  W.  Va.  185.         «  Cook  v.  Thornhill.  13  Tex.  293. 

'  Maxwell  v.  Campbell,  45  Ind.  360. 


268  INTER-STATE    RIGHTS    OF    GUARDIANS. 

such  guardian  have  lands,  then  a  decree  of  sale,  and  sale  made, 
in  such  probate  court,  of  the  county  where  the  lands  are  situated, 
is  prima  facie  valid,  and  upon  those  persons  undertaking  to  dis- 
pute tlie  same  devolves  the  onus  of  evidence  to  show  the  same  to 
be  inoperative  or  void.* 

Removal  of  Ward  and  his  Property,  by  his  Guardian,  into 
another  State.  A  guardian  of  a  minor  obtaining  the  property 
of  his  ward  in  the  State  wlierein  he  is  appointed,  and  then  remov- 
ing property  and  ward  to  another  State  so  as  to  change  the 
dohiicile  not  only  of  the  minor,  but  of  himself,  is  still  account- 
able in  the  courts  of  the  State  into  which  he  has  thus  removed 
his  charge,  for  the  property  so  brought  into  the  State  although 
he  cannot  exercise  the  powers  of  guardian  therein  by  force  of  his 
appointment  in  the  other  State.  ^  For  though  the  guardian's 
power  to  act  as  such  does  not  exist  in  the  State  into  which  he  has 
thus  come,  yet  the  obligation  of  his  trust  continues,  and  the 
courts  of  such  State  will  enforce  it  and  not  turn  the  ward  over 
to  the  courts  of  another  jurisdiction  for  a  remedy  when  he  is 
clearly  invested  with  aright;  the  office  of  guardian  having  ter- 
minated by  the  change  of  residence  and  removal  of  the  property, 
the  minor  thereby  becomes  entitled  to  have  an  account.* 

Upon  the  principles  of  the  civil  law  whicli  in  that  respect  pre- 
vails in  Louisiana,  the  guardian  having  removed  the  property 
into  a  different  State,  wherein  his  guardianship  does  not  exist,  is 
nevertheless  liable  to  account  as  exercising  a  species  of  agency, 
termed  in  that  law,  Negotiorum  ^^-^(^r,, receiving  at  the  same 
time  a  fair  compensation  by  way  of  allowance  for  necessary 
expenses,  if  he  has  acted  in  good  faith.'*  Though  a  guardian 
appointed  in  one  State  may  not  be  able  to  prosecute  a  suit  in 
another  State  as  such  guardian  and  by  virtue  of  his  powers  as 
such,  yet  if  in  the  State  where  he  is  appointed,  assets  come  to  his 
hands  in  the  shape  of  notes  or  obligations  of  persons  in  another 
State,  it  becomes  his  duty  to  look  to  them  and  make  reasonable 
efforts  of  some  sort  to  secure  payment  thereof  or  prevent  their 
loss.  5 

'  Farrington  B.  "Wilson,  29  Wis.  383.  *  Ibid ;  2  Moreau  &  Carleton's  Par- 

«  Leverich  t>.  Adams,  15  La.  Ann.  Udm,  842,  843,  844,  845. 

310.  •  Potter  v.  Hiscox.  30  Conn.  508. 
•Ibid. 


DOWEE JURISDICTION    OF    NATIONAL    COURTS.     269 


IX.     Dower. 

The  law  of  the  domicile  of  the  deceased  husband,  at  the  time 
of  his  death,  determines  as  to  the  dower  or  portion  of  the  widow  • 
in  the  personal  estate  of  the  deceased. ^     In  regard  to  real  estate, 
her  right  of  dower  will  be  measured  by  the  lex  rei  sites,  or  law 
of  the  State  where  the  lands  lie.^ 

In  Louisiana,  where  community  of  property  exists  as  between 
the  husband  and  wife,  it  is  held  that  a  husband  and  wife  who 
were  married,  and  spent  their  entire  married  life  in  another  State, 
do  not  come  within  the  law  of  Louisiana,  which  establishes  com- 
munity of  property,  or  partnership  interests,  in  gains  acquired 
after  marriage,  altliough  such  property  be  acquired  by  the  hus- 
band, within  the  State  of  Louisiana,  and  be  so  held  until  his 
death.  The  law  of  Louisiana,  in  that  respect,  applies  only  to 
married  persons  who  reside  in  the  State.  ^ 

Bights  of  Citizenship  cannot  change  this  rule.  Nor  does  the 
provision  of  the  constitution  of  the  United  States,  which  declares, 
that  "  the  citizens  of  each  State  shall  be  entitled  to  all  the  privi- 
leges and  immunities  of  citizens  in  the  several  States,"  enable 
persons  thus  living  and  dying  in  another  State  to  claim  the  ben- 
efit of  said  law.^ 

X.     Jurisdiction  of  National  Courts  in  matters  of  Probate. 

Jurisdiction  Depends  on  Citizenship.  Where  the  parties  pos- 
sess the  necessary  citizenship,  circuit  courts  of  the  United  States 
will  take  jurisdiction  over  executors  and  administrators,  and 
adjust  claims  against  them,  upon  the  same  rules  which  the  local 
or  State  courts  enforce  or  act  upon,  in  reference  to  the  rights  of 
the  citizens  of  the  State  in  similar  cases,  so  far  as  they  are  not 
repugnant  to  the  laws  of  the  United  States. ^  And  the  right  of 
executors  and  administrators  to  sue  in  such  courts,  so  far  as  citi- 
zenship is  concerned,  depends  upon  the  citizenship  of  such 
executors  or  administrators,  and  not  upon  that  which  was  the 
decedent's  whom  they  represent.^     But  in  exercising  such  juris- 

'  Gilraan  v.  Gilman,  53  Maine,  184.  *  Ibid. 

2  Ibid.  «  Walker  v.  Walker,  9  Wall.  743, 754, 

8  Louisiana    Code,    Articles    2369,  755. 

2370 ;  Conner  v.  Elliott,  18  How.  591.  •  Childress  v.  Emory,  8  Wheat.  643. 


270  INTER-STATE    RIGHTS    OF   EXECUTORS. 

diction  the  United  States  courts  will  not  regard  as  applying  to 
them,  State  laws  taking  away  in  effect  their  jurisdiction  as 
between  citizens  of  different  States. ^ 

State  Statutes  in  Derogation  of  Jurisdiction  of  United  States 
Court.  A  State  statute  preventing  suit  against  executors  and 
administrators  of  insolvent  estates,  is  not  construed  to  extend  to 
creditors,  residents  of  other  States,  so  as  to  exclude  them  from 
fiuit  against  such  executors  or  administrators  in  the  United  States 
circuit  court.  No  law  of  any  State  can  restrict  the  constitutional 
and  legal  right  of  a  plaintiff  to  sue  in  said  court.  A  State  may 
pass  general  laws  of  limitation,  as  to  the  time  within  which 
actions  may  be  brought,  but  they  must  be  of  a  reasonable  char- 
acter, acting  uniformly,  and  as  such  may  become  the  law  of  the 
forum  of  a  United  States  court  administering  the  laws  of  such 
State;  but  to  deny  the  action  altogether  is  in  contravention  of 
the  right  of  the  citizens  of  one  State  to  sue  citizens  of  another 
State  in  the  United  States  courts;  a  right  given  by  the  Federal 
constitution  and  laws,  and  which  cannot  be  circumscribed  by  the 
laws  of  a  State.  3 

Thus  a  law  of  a  State  preventing  suit  against  the  executor  or 
administrator  after  the  estate  is  declared  insolvent,  and  directing 
distribution  of  assets  among  certain  then  recognized  creditors 
and  established  claims,  if  to  be  regarded  simply  as  a  denial  of 
right  of  action,  has  no  application  to  United  States  courts  whose 
power  to  entertain  such  suits,  as  well  as  the  rights  of  a  plaintiff 
otherwise  qualified  to  sue,  in  these  courts  emanate  from  the 
national  government,  and  are  not  affected  by  any  such  law  which 
strikes  not  only  at  the  right  of  the  citizen  to  sue,  but  at  the 
jurisdiction  of  the  court  itself.  If,  on  the  other  hand,  the 
restriction  is  regarded  merely  as  pai-t  of  the  State  system  of 
insolvency,  then  it  is  inoperative  as  against  a  creditor  residing  in 
a  different  State,  for  want  of  jurisdiction  over  his  person  or  the 
debt,  unless  he  has  in  some  manner  submitted  personally  to  the 
jurisdiction  in  the  State  proceedings  in  which  such  insolvency  is 
declared.  5 

'  Suydam  v.  Broadnax.  14  Pet.  67,      18  How.  503;  Watson  e.  Tarpley,  18 
75;  Watson  v.  Tarpley,  18  How.  517,      How.  517.  521. 
531.  *  Suydam  v.  Broadnax.  14  Pet.  67, 

*  Suydam  t>.  Broadnax,  14  Pet.  67 ;      74,  75, 76 ;  Union  Bank  of  Tennessee 
Union  Bank  of  Tennessee  t>.  Jolly,      «.  Jolly,  18  How.  503 ;  Watson  c.  Tar- 
pley, 18  How.  517. 


JUEISDICTIOX    OF    NATIO^S'AL    COUETS.  271 

Judgment  Lien.  The  effect  of  the  judgment  lien,  or  other  opera- 
tion of  the  judgment  when  obtained,  upon  the  assets  of  the  deceased 
•debtor,  depend  upon  and  are  controlled  by  the  local  or  State  law, 
otherwise  irremediable  conflfcts  of  jurisdiction  would  be  liable  to 
arise.  ^  The  case  cited  of  Watson  v.  Tarpley,  affords  an  apt 
illustration  of  this  principle.  It  was  an  action  on  a  bill  of 
•exchange,  for  non-acceptance  thereof  on  presentation  before  due, 
for  acceptance;  recovery  was  resisted  by  defendant  as  to  that 
particular  bill,  by  virtue  of  a  statute  of  the  State  of  Mississippi 
(the  suit  being  pending  in  the  United  States  Circuit  Court  for 
the  Mississippi  district),  which  declared  in  substance  that  no 
action  should  be  maintained  on  any  bill,  until  after  maturity. 
The  court  below  ruled  thereon  for  defendant,  but  on  error  to  the 
United  States  Supreme  Court,  that  court  held,  it  being  a  general 
rule  of  commercial  law  that  a  right  of  action  accrues  to  the  payee 
-or  endorsee  of  a  bill  on  presentation  and  refusal  to  accept,  and 
that  this  law  is  not  circumscribed  to  any  local  limits,  and  cannot 
be  by  State  laws,  in  its  applicability  to  the  United  States  courts, 
inasmuch  as  it  would  infringe  upon  the  jurisdiction  of  these 
courts,  and  impair  the  rights  of  citizens  and  others  secured  by 
the  constitution  and  laws  of  the  United  States,  to  litigate  there- 
in. ^  In  the  same  case,  the  Supreme  Court  referring  to  their  rul- 
ing in  Swift  V.  Tyson,^  with  approval,  as  to  the  extent  to  M'hich 
State  laws  are  by  act  of  Congress  designed  to  be  made  the  law  of 
the  Federal  courts,  recur  to  the  act  of  Congress  known  as  the 
Judiciary  act,  which  provides  that  the  laws  of  the  several  States, 
except  where  the  constitution,  treaties,  or  statutes  of  the  United 
States  shall  otherwise  require  or  provide,  shall  be  regarded  as 
rules  of  decision  in  trials  at  common  law,  in  the  courts  of  the 
United  States,  in  cases  where  they  apply,  and  say :  "  It  never  has 
been  supposed  by  us,  that  this  section  did  apply,  or  was  intended 
to  apply  to  questions  of  a  more  general  nature,  not  at  all  depend- 
ent upon  local  statutes,  or  local  usages  of  a  fixed  and  permanent 
operation;  as  for  example,  to  the  construction  of  ordinary  con- 
tracts or  otlier  written  instruments,  and  especially  to  questions 
of  general  commercial  law."  * 

'  Union  Bank  of  Tennessee  v.  Jolly,  -  Watson  v.  Tari^ley,  18  How.  517, 

18  How.  503,  507;  Williams  v.  Bene-  521. 

diet,  8  How.  107:  McGill  v.  Armour,  ^  \q  pgt.  i. 

11  How.  142.  *  18  How.  530. 


272  INTER-STATE    RIGHTS    OP   EXECUTORS. 

XI.    Pleadings  in  Inter-State  Suits  in  Administration 

Matters. 

Suit  on  Judgment  of  other  State.  iVe  unqnes  administrator 
is  not  a  good  plea  to  an  action  by  an  administrator  on  a  judg- 
ment rendered  in  his  favor  as  administrator.  The  question  of 
the  plaintiflf's  capacity  or  right  to  sue  is  settled,  and  merged  in 
the  former  proceeding  and  judgment.  The  right  becomes,  by 
such  judgment,  a  personal  one  in  the  administrator,  which  he 
may  recover  on  without  stating  his  capacity;  and,  therefore, 
when  his  character  as  administrator  is  stated  in  the  declaration 
or  petition  in  such  action,  it  is  to  be  regarded  merely  as  deaci^ip- 
tive.^  In  the  case  here  cited  of  Biddle  v.  Wilkins^  the  action 
was  one  of  debt  upon  a  judgment  rendered  in  the  district  court 
of  the  United  States  for  the  western  district  of  Pennsylvania,  in 
favor  of  plaintiff  as  administrator,  which  Pennsylvania  judg- 
ment was  rendered  on  a  judgment  obtained  in  the  mayor's  court 
at  Calcutta  by  plaintiff  as  such  administrator.  To  the  action  in 
Mississippi,  the  defendant  pleaded.  Firsts  ne  unquea  adminis- 
trator;  Secondly^  that  defendant  was  himself  the  administrator 
of  the  same  decedent,  duly  appointed  as  such  in  the  State  of 
Mississippi;  and,  Thirdly^  that  the  judgment  sued  on  was  ob- 
tained by  fraud.  To  the  two  first  pleas,  there  was  a  demurrer, 
and  there  was  joinder  in  fact  to  the  third,  to  the  country.  Judg- 
ment was  rendered  for  defendant  on  the  demurrer  and  the  case 
went  up  on  error  to  the  supreme  court  of  the  United  States.  On 
argument  of  the  demurrer  there,  the  first  plea  was  substantially 
abandoned  as  bad,  and  reliance  was  placed  upon  the  second.  The 
court  regarded  it  as  substantially  raising  the  same  point  as  the 
first,  but  in  a  more  exceptionable  form.  In  disposing  of  the 
case  in  the  supreme  court,  Thompson,  J.,  delivering  the  opinion, 
says:  "The  debt  sued  for  is,  in  truth,  due  to  the  plaintiff  in  his 
personal  capacity,  and  he  may  well  declare  that  the  debt  is  due 
to  himself,"  and  that,  therefore,  it  was  "  totally  immaterial 
whether  the  defendant  was  or  was  not  administrator,  *  *  4«- 
in  the  State  of  Mississippi."  The  judgment  below  was  reversed, 
with  an  order  for  leave  to  plead  anew,  if  desired.* 

'  Biddle  «.  Wilkins,  1  Pet.  686 ;  Tal-         »  1  Pet.  693. 
mage  t.  Chapel,  16  Mass.  71. 


PRIVATE  CORPORATIONS  IN  TWO  STATES.     273 


CHAPTEE   XXY. 

PRIVATE  COEPORATIONS  AND  WORKS  EXISTING  IN  TWO  OR  MORE  STATES. 

I.  Power  to  Sell  Capital  Stock  thereof  on  Execution. 

II.  Power  to  Tax  Mortgage  Debt  thereof  by  the  States. 

III.  Liability  to  Suit  for  Common  Law  Cause  of  Action. 

IV.  Power  of  United  States  Court  as  to  Mortgage,  Foreclosure 

AND  Sale  of  Property  Situated  in  Two  States. 

I,    Power  to  Sell  Capital  Stock  of  Inter-State  Works  on 

Execution. 

Nice  questions  of  law  sometimes  arise  in  regard  to  jurisdic- 
tion of  State  courts  concerning  inter-State  corporate  works  of 
internal  improvements. 

Process  from  State  Court.  Thus,  where  the  corporation  and 
its  work  exist  in  two  or  more  States,  as,  for  instance,  in  the  case 
of  the  Dismal  Swamp  Canal  Company  and  its  works,  the  cor- 
jjoration  existing  by  law  in  both  Virginia  and  North  Carolina, 
and  the  works  of  the  company  being  partly  in  each  of  these 
States,  and  the  stock  of  the  company  being  by  statute  declared 
real  estate,  it  is  held  that  it  cannot  be  levied  and  sold  on  execu- 
tion emanating  from  State  courts  of  either  of  said  States,  if  it  is 
to  be  considered  as  savoring  of  the  realty  in  reference  to  execu- 
tion, levy  and  sale.i 

Savoring  of  the  Healty.  In  such  case  the  capital  stock  savors 
of  the  realty,  which  exists  in  part  in  each  of  the  States,  and  the 
shares  being  on  the  whole  amount  thereof,  and  yet  indivisible  in 
themselves,  it  results  that  each  share  represents  land  in  each  of 
said  States,  and  that  a  sale  in  one  State  cannot  confer  title  to 
property  locally  situated  in  the  other,  nor  to  any  part  of  the 
property  situated  in  the  State  wherein  the  proceedings  are  had, 

'  Cooper   V.   The    Dismal  Swamp      195;  Rorer  on  Jud.  &  Ex.  Sales,  2d 
Canal  Co.,  2  Murph.  L.  «fc  Eq.  (N.  C.)      Ed.  §  1325. 
18 


274  PRIVATE   CORPORATIONS    IN   TWO    STATES. 

inasmuch  as  the  share  interests  are  of  an  entirety  and  cannot  be 
so  separated  as  to  affect  only  the  property  lyin^  within  the  State 
where  tlie  sale  is  made.  Hence,  where  an  execution  sale  of  capital 
stock  of  the  Dismal  Swamp  Canal  Company  was  made  in  North 
Carolina  on  process  from  a  court  of  North  Carolina,  and  the  pur- 
chaser took  proceedings  in  chancery  against  the  company  to 
enforce  the  transfer  of  the  capital  stock  upon  its  books,  the 
enforcement  thereof  was  refused,  on  the  ground  that  the  sale  was 
void  for  want  of  jurisdiction  in  the  court  under  whose  process 
the  sale  was  made  to  reach  the  same  by  its  process,  if  the  stock 
was  to  be  regarded  as  realty.  ^  But  the  supreme  court  of  North 
Carolina  seem  disposed  to  regard  the  statutes  declaring  the 
capital  real  estate,  as  intended  t )  give  it  an  inheritable  character 
rather  than  to  influence  its  liability  to  sale  on  execution,  main- 
taining, however,  as  herein  stated,  that  if  it  is  to  be  considered  as 
in  that  respect  affecting  its  liability  to  levy  and  sale,  then  such  dis- 
position of  it  under  State  process  would  be  a  legal  impracticability 
for  the  jurisdictional  reasons  already  stated;  and  that,  therefore, 
no  execution  sale  of  it  could  be  made  if  it  were  real  estate;  that 
if  it  is  to  be  regarded  otherwise,  then,  as  mere  choses  in  action, 
the  shares  of  stock  could  not  be  so  sold,  since  in  North  Carolina 
choses  in  action  or  capital  stock  of  a  private  corporation  was 
not  in  law  liable  to  levy  and  sale  on  execution.  In  order  to 
more  clearly  illustrate  the  ruling  of  the  court  and  character  of 
the  proceeding  in  that  case,  we  annex  here  a  marginal  note  of 
the  material  part  of  the  opinion  of  the  court.' 

'  Cooper   B.  The    Dismal    Swamp  of  president  and  directors  of  the  com- 

Canal  Co.,  2  Murph.  L.  «fc  Eq.  (N.  C.)  pany  has  by  these  acts  been  located. 

195 ;  Rorer  on  Jud.  &  Ex.  Sales,  2d  It  therefore  follows  that  the  courts  of 

Ed.  §  1335.  each  State  have  equal  jurisdiction ; 

*  Cooper  V.  Dismal  Swamp  Canal  but  the  court  in  either  State  in  which 

Co.,  2  Murph.  L.  &  Eq.  195.  Hall,  J. :  a  suit  shall  be  first  properly  instituted 

"The  last  question  submitted  to  this  does,  by  such  prioritj',  oust  all  other 

courtshould  be  first  considered.  Have  courts  of  the  jurisdiction  during  the 

the  courts  of  North  Carolina  jurisdic-  peudency  of  such  suit  and  while  any 

tion  of  the  present  suit?    It  is  to  be  judgment  which  may  be  regularly 

observed  that  the  canal  lies  partly  in  given  in  such  suit  remains  in  force. 

Virginiii  and  partly  in  this  State,  and  "But  the  complainant  has  not  ap- 

that  the  acts  of  assembly  incorporat-  plied  to  the  proper  jurisdiction.    He 

ing  the  company  give  no  preference  ought  to  have  applied  to  a  court  of 

to  the  courts  of  either  State.    And  it  common  law  for  a  mandamm  to  com- 

Is  to  be  further  observed  that  the  office  pel  the  officers  of  the  company  to 


POWER    TO    TAX    MORTGAGE    THEREOF. 


275 


II.     Power  to  Tax  Moetgage  Thereof. 

Not  Taxable  in  Either  State.  Mortgage  bonds  of  a  railroad 
corporation,  created  as  a  corporation  by  the  laws  of  two  differ- 
ent and  adjoining  States,  and  whose  line  of  road  is  an  entirety, 
and  is  partly  situated  in  each  of  those  States,  and  is  in  all  its 
parts  covered  by  the  mortgage  and  bonds,  as  such  entirety,  can- 
not be  subjected  to  taxation  in  and  by  either  of  said  States. ^ 


register  his  deed  in  case  he  be  entitled 
to  have  it  registered.  *  *  *  It  is 
not  necessary  to  discuss  this  point,  as 
tlie  first  and  second  points  made  in 
this  case  must  be  decided  against  the 
complainant. 

"  It  is  true  that  the  acts  of  incor- 
poration declare  that  the  shares  shall 
be  considered  real  property,  and  it  is 
also  true  that  real  property  may  be 
sold  under  writs  oi  fieri  facias  in  this 
State.  But  it  was  not  contemplated 
to  make  such  shares  liable  to  debt  as 
real  property.  The  object  of  the  acts 
was  to  give  the  shares  the  quality  of 
being  inheritable.  This  idea  is 
strengthened  by  a  clause  in  the  act 
which  declares  that  there  shall  be  no 
severance  of  a  share.  If  the  shares 
are  to  be  considered  real  property  as 
to  the  payment  of  debts,  they  must 
be  viewed  as  savoring  of  and  issuing 
from  the  land,  in  which  case  they 
have  locality;  and  part  of  the  land 
lying  in  Virginia  is  not  within  the 
jurisdiction  of  this  court,  so  that  an 
execution  could  be  levied  on  it;  and 
we  have  just  seen  that  that  part  which 
lies  in  this  State  cannot  be  sold,  be- 
cause there  can  be  no  severance  of  a 
share.  If  the  shares  be  considered  as 
unconnected  with  the  land,  although 
as  to  some  purposes  they  be  consid- 
ered as  real  estate,  yet,  as  to  execu- 
tions, they  are  clwses  in  action,  and 
not  the  subject  of  seizure  or  sale.  It 
may  be  aptly  said  of  them  what  Lord 
ELiiENBOKOOGH,  In  the  case  of  Scott 


V.  Scholey,  (8  East,  467)  said  of  equita-' 
ble  interests  in  terms  for  years,  '  that 
they  had  no  locality  attached  to  them 
so  as  to  render  them  more  fitly  the 
subject  of  execution  and  sale  in  one 
country  than  in  another.' " 

The  complainant,  purchaser  and 
holder  of  a  sheriflf's  deed  for  stocks 
sold  on  execution,  had  brought  his 
bill  to  compel  the  president  and  direcli- 
ors  to  register  his  deed. 

'  Railroad  Company  v.  Jackson,  7 
Wall.  362.  The  tax  referred  to  in  this 
case  was  levied  by  the  State  of  Penn- 
sylvania of  three  mills  on  the  dollar 
of  all  money  owed  by  solvent  debtors. 
The  debt  of  railroad  corporations  it 
claimed  to  reach  by  requiring  the 
debtor  corporation  to  pay  the  tax  and 
allowed  it  to  deduct  the  same  from 
payments  of  coupons.  To  this  the 
creditor  declined  to  submit,  and 
brought  suit  upon  his  coupons.  The 
United  States  supreme  court  held  the 
tax  illegal.  See  Railroad  Co.  ■».  Penn- 
sylvania, 15  Wall.  300.  Neither  are 
bonds  issued  by  a  railroad  company 
in  the  hands  of  a  non-resident  of  a 
State  subject  to  taxation  in  the  State 
ot  the  company.  See  cases  just  cited, 
and  also  Davenport  v.  Miss.  &  Mo.  R. 
R.  Co.,  12  Iowa,  539 ;  People  v.  East- 
man, 25  Cal.  603;  Commonwealth  v. 
Chesapeake  &  Ohio  R.  R.  Co.,  27 
Gratt.  344.  See,  on  the  contrary, 
Multby  v.  Reading  &  Col.  R.  R.  Co., 
52  Penn.  St.  140. 


276     PRIVATE  CORPORATIONS  IN  TWO  STATES. 

Snch  mortgage  indebtedness  rests  for  its  security  upon  the  credit 
and  value  of  the  entire  line  of  road,  its  fixtures  and  franchises  in 
both  States,  and  which  is  indivisible,  and  so  is  each  bond  of  the 
mortgage  debt.  The  security  being  an  entirety,  and  existing  as 
it  does  locally  in  two  difierent  States,  and  is  equally  liable  to  sale 
in  satisfaction  of  the  mortgage  debt.  If  one  of  these  States  may 
tax  the  whole,  so  may  the  other,  and  each  will,  in  that  case,  tax 
interests  and  property  situated  in  part  without  its  territorial  lim- 
its and  jurisdiction,  while  neither  that  portion  of  the  road  situ- 
ated in  one  or  the  other  of  these  States  is  separately  liable  lor 
any  separate  part  of  such  indebtedness  or  bonds,  but  each  is  lia- 
ble with  all  its  interests  for  the  whole.  No  portion  of  the  bonds 
pertain  to  any  one  part  of  the  road  more  than  to  another ;  and 
as  there  is  no  severance  to  the  bonds,  none  can  be  made  for  tax- 
ation proportionate,  or  in  reference  to,  the  comparative  work  or 
line  of  road  within  the  two  different  States.  If  taxable  as  to 
one  bond,  it  is  so  as  to  all,  and  if  in  one  State,  so  likewise  in  the 
other;  and  the  result  would  be  double  taxation  of  the  bonds  or 
bondholders,  and  thus  the  burden  would  increase  and  be  doubled 
again,  if  permissible  at  all,  and  the  line  of  the  road  and  its  unity 
existed  in  still  another  one  or  more  States.  In  the  language  of 
the  United  States  supreme  court,  Is'ei.son,  J.,  as  a  better  illustra- 
tion than  our  language  may  give,  "  If  Pennsylvania  can  tax  these 
bonds,  upon  the  same  principle  Maryland  can  tax  them.  *  *  * 
The  only  diiFerence  in  the  two  cases  is,  that  the  line  of  road  is 
longer  within  the  limits  of  tlie  former  than  the  latter.  Her  tax 
would  be  a  more  marked  one  beyond  the  jurisdiction  of  the 
State,  as  the  property  and  interests  outside  of  its  limits  would 
be  larger.  The  consequence  of  this  taxation  of  three  mills  on 
the  dollar,  if  permitted,  would  be  double  taxation  of  the  bond- 
holders. Each  State  could  tax  the  entire  issue  of  bonds.  *  ■'*  * 
The  eft'ect  of  this  taxation  upon  the  bondholders  is  readily  seen. 
A  tax  of  three  mills  per  dollar  of  the  principal  at  an  interest  of 
six  per  centum  payable  semi-annually,  is  ten  per  centum  per 
annum  of  the  interest.  A  tax,  therefore,  by  each  State  at  this 
rate  amounts  to  an  annual  deduction  from  the  coupons  of  twenty 
per  centum;  and,  if  this  consolidation  of  the  line  of  road  ex- 
tended into  New  York  or  Ohio,  or  into  both,  the  deduction 
would  have  been  thirty  or  forty.  If  Pennsylvania  must  tax 
bonds  of  this  description,  she  must  confine  it  to  bonds  issued 


LIABILITY    TO    SUITS.  277 

exclusively  bj  lier  own  corporations.  *  *  *  To  permit  the 
deduction  of  the  tax  from  the  coupons  in  question,  would  be  giv- 
ing effect  to  the  acts  of  the  legislature  of  Pennsylvania  upon  the 
property  and  interests  lying  beyond  her  jurisdiction." 

III.     Liability  to  Suit  fok   Common   Law  Cause  of  Action. 

Suit  in  Either  State.  A  railroad  company  which  is  incorpo- 
rated by  two  States,  and  which  operates  as  one  road  in  both 
States,  is  liable  to  an  action  in  the  courts  of  one  of  those  States 
for  dereliction  of  common  law  duties  in  the  other  State,  as  a 
coinraon  carrier,  by  discriminating  between  persons  as  to  trans- 
portation on  the  road.i  The  case  cited  of  MoDuffee  v.  The 
Portland.  c&  Rochester  R.  R.  Go.^  was  this:  The  Portland  & 
Pochester  Railroad  Company,  chartered  by  both  the  States  of 
JS^ew  Hampshire  and  Maine,  and  operating  its  road  in  both  said 
States,  discriminated  in  the  State  of  Maine  between  certain  per- 
sons in  relation  to  the  carriage,  accommodations  and  price  of  car- 
riage of  express  matter.  There  being  a  statute  in  ISTew  Hamp- 
shire inhibiting  such  discrimination,  the  plaintiff  predicated  his 
right  of  action  upon  such  statute.  Objection  being  made  thereto, 
the  court  ruled  that  the  statute  but  re-enacted  the  common  law 
on  the  same  subject,  and  which  prevailed  in  Maine,  and  that, 
therefore,  the  common  law  right  of  action  being  essentially  the 
same  in  both  States,  and  the  action  being  a  transitory  one,  it 
might  be  maintained  in  the  courts  of  Kew  Hampshire,  if  the 
pleadings  be  so  reformed  as  to  make  it  an  action  at  common  law, 
saying  nothing  of  the  statute,  and  advised  an  amendment  accord- 
ingly; and  in  so  amending  the  court  suggested,  that  it  might  be 
well  to  employ  as  much  of  the  statutory  language  as  practicable, 
but  witliout  reference  to  the  statute. 

This  proceeding  was  an  action  on  the  case,  and  the  decision  of 
the  New  Hampshire  court  asserts  the  right  to  maintain  such  an 
action,  if  for  a  common  law  cause,  in  one  State  for  a  cause  aris- 
ing in  another  State,  when  the  laws  of  each  on  the  subject  of  the 
right  are  as  at  common  law,  against  a  railroad  corporation  oper- 
ating its  road  in  both  States.  So,  in  the  case  of  Harris  v.  The 
Baltimore  <&  Ohio  Railroad^  a  corporation  created  in  Maryland, 

J  McDuffee  t.  The  Portland  &  Railroad  Co.  v.  Harris,  13  Wall.  65. 
Rochester  R.  R.  Co.,  53  N.  H.  430;  =  53  N.  H.  430. 


278  PRIVATE    CORPORATIONS    IN    TWO    STATES. 

and  subsequently  in  the  State  of  Virginia,  and  by  act  of  Con- 
gress in  the  District  of  Columbia,  by  which  its  corporate  capacity 
was  extended  under  one  and  the  same  name  into  both  Virginia 
and  said  District,  making  it  one  and  the  same  corporation,  with 
like  powers  in  each.  The  plaintiff  below,  Harris,  having  bought 
a  ticket  in  the  District  of  Columbia  over  the  road  of  said  com- 
pany to  the  Ohio  river,  was  injured  e?^  route  in  Yirginia,  by  a 
collision.  Having  sued  the  corporation  in  the  District  of  Colum- 
bia for  his  injuries  in  Virginia,  and  the  case  having  gone  to  the 
supreme  court  of  the  United  States,  that  court  held  that  such 
action  would  lie  in  said  District,  the  company  being  one  and  the 
same  there  and  elsewhere.^  In  this  case  the  plaintiff  alleged  a 
contract  for  safe  transportation,  and  that  by  negligent  manage- 
ment a  collision  occurred  causing  the  injury,  resting  the  right  of 
action  partly  on  contract  and  partly  in  tort  as  for  negligence. 
The  contract  for  passage  was  made  in  the  District  of  Columbia, 
and  the  court  held  the  suit  rightly  brought  there.  The  action 
was  predicated  on  only  a  common  law  right;  thus  the  question  as 
to  the  right  to  sue  in  one  State,  in  a  statutory  action,  for  injuries 
incurred  in  another  State,  for  which  an  action  is  given  by  statute 
of  the  State  where  the  injury  occurs,  did  not  arise  in  this  case. 

So  in  the  case  of  Richardson,  v.  The  Yerniont  <&  Massachu- 
setts Railroad  Company,^  incorporated  by,  and  operating  its 
road  in,  the  States  of  Vermont  and  Massachusetts,  the  supreme 
court  of  Vermont,  in  an  action  ex  contractu,  held  that  the  com- 
pany were  liable  to  suit  in  each  of  said  States.  Moreover,  the 
Vermont  charter  embodied  a  clause  in  substance  requiring  some 
officer  of  the  company  to  at  all  times  reside  in  Vermont,  on  whom 
process  could  be  served,  and  that  the  company  should  be  held  to 
answer  in  the  jurisdiction  where  service  and  return  should  be 
inade.3  But  here  again,  the  point  is  not  reached  as  to  whether, 
if  an  action  be  brought  in  one  of  those  States  against  this  same 
company  for  an  injury  inflicted  within  the  territorial  limits  of 
the  other  of  those  States,  and  the  character  of  the  action  is  not 
one  at  common  law,  but  is  one  created  by  a  statute  of  the  State 
-wherein  the  injury  occurs,  jurisdiction  can  be  sustained  in  the 
State  where  such  suit  is  brought. 

'  Railroad  Co. «.  Harris,  12  Wall.  65.         '  Richardson  t».  Vermont  &  Mass. 
» 44  Vt  613.  .  R  R.  Co.,  44  Vt.  613. 


POWEES  OF  UNITED  STATES  COUET.       279 


IV.     Powers  of  United  States  Court  as  to  Mortgage  Fore- 
closure AND  Sale  of  Property  Situated  in  Two  States. 

But  when  the  proceeding  is  in  the  circuit  court  of  the  United 
States,  and  the  proper  parties  exist  to  confer  jurisdiction,  as  well 
as  all  other  necessary  jurisdictional  circumstances  to  enable  such 
court  to  take  cognizance  of  the  subject  matter  of  the  suit,  and 
actual  jurisdiction  be  obtained  of  the  parties,  then  the  court  may 
decree  in  reference  to  the  subject  matter;  as,  for  instance,  against 
corporate  works  situated  partly  in  two  different  States,  and  if 
the  proceedings  be  for  foreclosure  of  a  mortgage  against  the 
same,  and  for  sale  thereof,  irrespective  of  the  property  being 
locally  situated  in  different  States  and  districts  than  that  in 
which  the  court  is  held,  then  the  decree,  in  addition  to  order  of 
sale,  will  enforce  the  parties  in  possession  to  deliver  over  to  the 
purchaser  the  property  sold  on  confirmation  of  the  sale.^ 

>  MuUer  v.  Dows,  4  Otto,  444,  448,  burgh  &  Steubenville  R.  R.  Co.,  55 
449.    See,   also,    McElrath  v.  Pitts-      Penn.  St.  189. 


280        FOBEIGN  PEIVATE  CORPORATIONS. 


CHAPTER  XXVI. 

FOREIGN    PRIVATE    CORPORATIONS. 

I.    Inteb-Statk  Suits  by  and  Against  Corporations. 
II.    Right  of  a  State  to  Exclude  Corporations  of  other  States. 

III.  Foreign  Corporations  mat  do  Business  in  a  State  if  not  Pro- 

hibited.   What  Law  Governs  their  Contract. 

IV.  Inter-State  Power  of  Corporations  to  Hold  Lands. 

V.    Inter-State  Suit  Against  Stockholders  to  Enforce  Individual 

Liability. 
VI.    Inter-State  Consolidation  of  Railroad  Corporations. 
VII.    Police  Power  over  Foreign  Corporations  in  a  State. 

I.     Inter-State  Suits  by  and  Against  Foreign  Corporations. 

May  be  Plaintiflfs.  Actions  and  suits  ex-contractu  maj,  by 
comity^  be  brought  by  a  corporation,  as  plaintiff,  in  the  courts  of 
other  States  than  that  wherein  the  plaintiff  resides,  against  nat- 
ural persons  or  corporations  of  such  other  States;  and  this,  too, 
irrespective  of  whether  such  plaintiff  corporation  be  created 
under  State  or  national  authority.  ^  But  quaere,  as  to  actions  for 
torts.  It  is  suggested  by  high  authority  that  the  latter  cannot 
be  maintained. 2  In  the  case  here  cited,  the  supreme  court  of 
Illinois,  Lawrence,  J.,  say:  "This  was  an  action  for  a  libel, 
brought  by  an  insurance  company  incorporated  under  the  laws 
of  the  State  of  Ohio.  A  demurrer  to  the  declaration  was  sus- 
tained in  the  superior  court,  and  that  ruling  is  assigned  for  error. 
It  has  been  held,  both  in  England  and  this  country,  that  a  do- 
mestic corporation  may  maintain  an  action  for  libel.     Whether  a 

'  Angel  &  Ames  on  Corps.  §§  372,  Bank  of  Edwardsville  v.  Simpson,  1 

376;  Libbey  «.  Hodgdon,  9N.  H.394;  Mo.  184;    Hahnemannian  Life  Ins. 

Tombigbee  R.  R.  Co.  v.  Kneeland,  4  Co.  v.  Beebe,  48  111.  87 ;  1  Potter  on 

How.  16 ;  Bank  of  Augusta  v.  Earle,  Corporations,  §  83.     See,   also,  Na- 

13  Pet.  519 ;  Bank  of  Marietta  v.  Pin-  tional  Bank  v.  Nichols,  4  Biss.  315. 

dall,  2  Rand.  (Va.)  463 ;  British  Am.  *  Hahnemannian  Life  Ins.  Co.  v. 

Land  Co.  v.  Ames.  6  Met.  391 ;  Fra-  Beebe,  48  111.  87. 
zier   t.  Willcox,  4  Rob.  (La.)  519; 


INTER-STATE    SUITS    BY    AND    AGAINST.  281 

foreign  corporation  may  do  so  is  a  question  wliich  we  do  not  find 
to  have  been. decided.  It  is  only  by  comity  that  we  permit  a 
foi'eign  corporation  to  bring  suit  in  our  courts,  upon  its  contracts, 
and  it  is  not  necessary  to  decide  in  the  present  case  whether  the 
comity  should  be  so  as  to  permit  a  suit  for  libel,  as  we  are  of 
opinion  that,  even  conceding  the  power  to  sue,  the  demurrer  to 
the  present  declaration  was  properly  sustained." ^ 

Defendants.  In  States  where  there  are  no  such  statutory  pro- 
visions for  service  on  an  agent,  or  no  such  agency  and  office  ex- 
exists,  corpoi'ations  of  other  States  cannot  be  personally  sued. 
For  it  is  a  settled  principle,  that  corporations  dwell  in  the  State 
of  their  creation,  and  cannot  emigrate  or  be  personally  present  in 
another,  so  as  to  be  tliere  sued  by  service  on  the  corporate  body. 2 
If  a  non-resident  or  foreign  corporation  has  property  in  a  State, 
subject  by  law  to  its  debts  or  liabilities,  proceedings  in  rem  may 
be  sustained  in  the  courts  of  the  State  wherein  the  property  is, 
and  tlie  same  may  be  seized  by  attachment,  and  condenmed  and 
sold. 3  And  it  is  not  every  cause  of  action  arising  against  a  cor- 
poration in  the  State  of  its  creation  that  can,  by  mere  comity^  be 
enforced  against  it  in  a  different  State.  The  better  doctrine  seems 
to  be,  that  in  the  absence  of  statutory  provisions  to  the  contrary, 
'only  actions  6:r  contractu  may  be  so  enforced  in  another  State.'* 
If,  however,  the  statute  of  such  other  State,  as  is  the  case  in 

'  Hahnemann ian  Life   Ins.   Co.  v.  trary,  the  numerous  cases  cited  for 

Beebe,  48  111.  87.  the  defendant  fully  support  the  oppo- 

■^Andrews  u.  Michigan  Cent.  R.  R.  site  conclusion.  A  foreign  corpora- 
Co.,  99  Mass.  534;  Newell  v.  Great  tion  can  only  be  sued  in  this  com- 
Western  Ry.  Co.,  19  Mich,  336.  In  monwealth  by  me  ins  of  an  attach- 
the  case  of  Andrews  v.  Michigan  ment  of  its  property,  unless,  as  in  the 
Cent.  R.  R.  Co.,  Hoar,  J.,  says :  "  This  case  of  foreign  insurance  companies, 
is  an  action  against  a  railroad  corpor-  by  virtue  of  an  express  statute  pro- 
ation  established  in  the  State  of  Mich-  vision."  See,  further,  Lathrop  «. 
igan,  and  the  only  service  of  the  writ  Union  Pac.  R.  R.  Co.,  1  McArthur, 
was  upon  the  treasurer  of  the  cor-  234. 

poration,   at  their  office  in  Boston.  '^  Andrews  «.  Michigan  Cent.  R.  R. 

There  was  no  attachment  of  property.  Co.,  99  Mass.  534.     See  ante^  Chap. 

The  writ  alleges  that  the  corporation  XII.,    and    Drake     on    Attachment, 

has  its  usual  place  of  business  within  §§79,  80.    See,  also  Selma,  etc.,  R.  R. 

the  commonwealth.     We  are  aware  Co.  ®.  Tyson,  48  Geo.  351. 

of  no  authority  for  the  maintenance  *  Harriott  «.  New  Jersey  R.  R.  Co., 

of  such  an  action,  and  none  has  been  2   Hilton,  262.     On  this  subject  see 

found  by  the  diligence  of  the  learned  Chapter  XY.,  §  3. 
counsel  for  plainliti'.     On  the  con- 


282        FOREIGN  PRIVATE  CORPORATIONS. 

Hassachnsetts,  in  regard  to  foreign  insurance  companies,  provide 
for  jurisdiction  of  its  courts  over  causes  of  action  generally  aris- 
ing therein  against  such  foreign  corporations,  and  provides  for 
service  on  the  agent  of  the  corporation  transacting  business  as 
such  in  the  State,  then  actions  other  than  those  upon  contracts 
will  lie  against  the  company  therein,  if  the  right  of  action  accrues 
within  the  State.  ^ 

Defendants,  Continued.  Service  on  Resident  Agent.  Juris- 
diction of  a  foreign  corporation  thus  obtained  by  service  on  a  resi- 
dent agent  or  officer  thereof,  (the  law  providing  for  such  service 
on  agents  of  foreign  corporations  doing  business  within  tlie  State,) 
\& personal  of  the  corporate  body;  it  places  the  corporate  entity 
or  person  in  cowrt^  2iS,  defendant,  and  will  not  only  sustain  or 
justify  a  general  judgment  against  it,  if  a  case  be  made  out,  for 
a  recovery,'  but  an  action  may  be  sustained  upon  such  general 
judgment  against  the  corporation  in  the  proper  court  of  the 
State  wherein  such  corporation  is  created  and  exists  by  law,  if 
the  same  be  properly  authenticated.  ^ 

Appearance  gives  Jurisdiction.  Although,  except  by  service 
on  its  agent,  when  authorized  as  aforesaid,  a  foreign  corporation 
may  not  be  subject  to  suit  by  personal  service,  as  the  corporate 
entity  is  in  another  State,  and  it  may  be  that  no  service  is  attain- 
able  as  against  it  as  a  legal  person;  yet  if  the  court  has  jurisdic- 
tion of  the  subject  matter  of  the  action  or  cause  of  action,  con- 
sent may  confer  jurisdiction  of  the  legal  person  or  corporate  body, 

'  Andrews  v.  Michigan  Cent.  R.  R.  corporations,  whether  of  other  of  the 

Co.,  99  Mass.  534.  American    States,    or    of    countries 

»  Gibbs  V.  The  Queen  Ins.  Co.,  63  strictly  forei.^n,  doing  business  and 
N.  Y.  114,  124;  Martine  v.  Interna-  exercising  the  special  privileges 
tional  Life  Ins.  Society,  53  N.  Y.  339,  within  a  State,  with  agents  therein, 
348 ;  Libbey  v.  Hogdon,  9  N.  H.  394.  by  permission  of  and  in  compliance 
It  has  been  held,  in  Georgia,  that  a  with  the  local  law  thereof,  are  re- 
foreign  corporation  doing  business  garded  as  domiciled  there,  and  liable, 
within  that  State  is  subject  to  the  ju-  as  domestic  corporations  are,  to  the 
risdiction  of  its  courts,  and  may  be  law  of  the  land.  Martine  v.  Interna- 
served  by  serving  the  officer  or  agent  tional  Life  Ins.  Society.  53  N.  Y.  339, 
of  the  corporation.  City,  etc.,  Ins.  346,  348;  Milnor  v.  N.  Y.  &  N.  H.  R. 
Co.  V.  Carrugi,  41  Geo.  660.  It  is  R.  Co.,  53  N.  Y.  363,  367 ;  Newby  v. 
within  the  power  of  a  State  legisla-  Von  Oppen,  L.  R.  7  Q.  B.  293. 
ture  to  authorize  a  suit  against  a  for-  ^  Lafayette  Ins.  Co.  c.  French,  18 
eign  corporation  in  personam  Barrett  How.  404;  Gibbs  «.  The  Queen  Ins. 
V.  Chicago,  etc.,  R.  R.  Co.,  4  Hun,  114;  Co.,  63  N.  Y.  114. 
8.  C,  6  Thomp.  &  C,  358.    Foreign 


IKTER-STATE    SUITS    BY    AND    AGAINST.  28S 

and  the  appearance  of  a  foreign  corporation  to  the  action,  by  an 
attorney,  and  answering  thereto,  amounts  to  such  consent,  and 
places  the  defendant  in  court  subject  to  its  jurisdiction. ^  So,  the 
appearance  and  pleading  by  a  non-resident  insurance  company, 
defendant  to  an  action  in  a  court  of  Minnesota,  instituted  against 
it  under  the  statute,  by  mere  filing  of  a  petition,  is  a  waiver  of 
all  irregularities  or  insufficiency  as  to  the  manner  of  bringing 
the  action,  and  places  the  defendant  in  court.  ^  And  the  provi- 
sion of  said  statute  rendering  insurance  companies  organized  by 
foreign  governments  liable  for  twenty-five  jper  centum  damages 
on  the  amount  found  against  them  for  neglect  to  pay  insurance 
money,  in  case  of  loss,  within  the  time  specified  in  the  policy, 
applies  only  to  such  companies  as  are  incorporated  by  govern- 
ments strictly  foreign,  and  not  to  those  companies  incorporated 
by  others  of  the  American  States.  ^ 

Construction  —  compliance  with  Local  provisions.  A  contract 
of  insurance  with  a  foreign  insurance  company,  the  policy  in 
which,  though  executed  by  the  company  in  another  State,  and 
delivered  by  its  agent  to  the  assured  in  the  State  where  he  resided, 
and  there  paid  for  by  the  assured,  and  before  delivery  counter- 
signed by  the  agent,  and  which  contained  a  provision  that  it  should 
not  be  obligatory  until  paid  for  and  so  countersigned,  is  held  to  be 
a  contract  made  in  the  State  where  the  same  was  delivered  by  the 
agent,  and  governed  by  the  laws  of  that  State,  in  reference  to  its 
construction  and  interpretation.'*  Foreign  insurance  companies 
who  in  Massachusetts  have  issued  policies  before  complying  with 
the  statute  of  that  State,  authorizing  them  to  do  business  tlierein, 
may,  after  compliance,  enforce  by  suit  the  payment  of  assessments 
on  such  policies.^  Where  by  law  something  is  required  of  foreign 
corporations  as  a  condition  to  doing  business  in  the  State,  the  rul- 
ing is,  that  a  foreign  corporation  which  has  not  complied  with  the 

'  McCormick  t>.  Penn.  Cent.  R.  R.  *  Pryce  v.  Security  Ins.  Co.  of  N. 

Co.,  49  N.  Y,  303,  309;  McQueen  v.  Y.  29  Wis.  270. 

Micklletown   Manf.  Co.,  16  John.  5;  » Ibid. 

Faulkner  ®.  Del.  &  liar.  Canal  Co.,  1  *  Pomeroy  v.  Manhattan  Life  Ins. 
Denio,  441;  Paulding  ?;.  Hudson  Co.,  40  HI.  398 ;  Heebner  i;.  Eagle  In- 
Manf.  Co.,  2  E.  D.  Smith,  38;  Wat-  surance  Co.,  10  Gray,  131, 143;  Ken- 
son  v.  Cabot  Bank,  5  Sandf.  423 ;  8.  C,  nebec  Co.  v.  Augusta  Ins.  and  Bank- 
4  Duer,  606,  note ;  De  Berner  v.  Drew,  ing  Co.,  6  Gray,  204,  208. 
39  How.  Pr.  406.  *  Xational    Mut.  Fire  Ins.  Co.  v. 

Pursell,  10  Allen,  231. 


284  FOREIGN    PRIVATE    CORPORATIONS. 

requirements  of  the  local  statute  as  to  the  terms  upon  which  it 
may  do  business  in  said  States,  cannot  recover  on  a  note  given  to 
it  for  premium  on  insurance  by  it  therein.^ 

Defendant,  where  State  is  a  Stockholder.  Though  a  sovereign 
State  may  not  be  sued  without  its  own  consent,  yet  such  exemp- 
tion from  suit  does  not  extend  to  a  corporation  for  business  pur- 
poses in  which  the  State  is  a  stockholder;  nor  if  the  State  owns 
all  the  stock,  while  the  president,  directors  and  other  designated 
persons  are  the  corporate  body.  In  the  latter  case,  this  corporate 
entity  or  "  metaphysical  person  is  liable  to  suit,"  notwithstanding 
the  interest  it  represents  belongs  to  the  State.'  In  the  case  here 
cited  of  Baiik  of  Kentucky  v,  Wister^  the  United  States  Supreme 
Court,  Johnson,  J.,  say:  "It  is,  we  think,  a  sound  principle, 
that  when  a  government  becomes  a  partner  in  any  trading  com- 
pany,  it  divests  itself,  so  far  as  concerns  the  transactions  of  that 
company,  of  its  sovereign  character,  and  takes  that  of  a  private 
citizen.  *  *  *  Thus  many  States  of  the  Union  which 
have  an  interest  in  banks,  are  not  suable  even  in  their  own  courts, 
yet  they  never  exempt  the  corporation  from  being  sued."*  A  rail- 
road corporation  of  one  State  which  has  built  a  railroad  in  such 
State,  is  liable  for  a  violation  of  a  patent  on  said  road  by  a  cor- 
poration of  a  different  State,  which  is  sole  operator  of  the  road, 
and  sole  owner  of  the  capital  stock  thereof.'*  The  corporation 
cannot  absolve  itself  from  responsibility  and  performance  of  its 
obligation  without  consent  of  the  legislature.  It  may  doubtless 
lease  or  confide  the  operating  of  the  road  to  others,  but  such 
others'  wrong  acts  are  its  own  wrong  acts  in  that  respect,  unless 
the  letting  or  sale  be  authorized  by  the  legislature  or  charter.' 

A  Quo  Warranto  lies  only  in  the  Home  State.  Courts  of  a 
State  other  than  wherein  a  corporation  is  created,  are  powerless 
to  inquire  into  and  declare  a  forfeiture  of  its  corporate  charter 
or  privileges.  They  have  no  jurisdiction  to  determine  that 
question,  either  in  a  collateral  or  direct  inquiry.  Such  inquiry 
and  judgment  of  forfeiture  can  only  be  had  in  the  courts  of  the 
State  which  conferred  or  granted  the  corporate  powers.'     Such 

'  JEtna  Ins.  Co.  r.  Harvey,  11  Wis.  ers'  Bank  of  Georgia,  9  Wheat  904. 

894 :  Williams  «.  Cheney,  8  Gray,  206 ;  "2  Pet.  318,  323. 

Haverhill  Ins.  Co.  «.  Prescott,  42  N.  *  York  &  Maryland  Line  R  R  Co. 

H.  547.  «.  Winans,  17  How.  30. 

«  Bank  of  Kentucky  t.  Wister.  2  Pef.  » Ibid. 

818;  Bank  of  United  States  c.  Plant-  •  Carey  r.  Cia.  &,  Chi.  R  R  Co.,  5 


RIGHT  OF  STATE  TO  EXCLUDE  CORPORATIONS.   2S5 

proceeding  should  be  against  the  persons  claiming  to  be  the  cor- 
porators and  not  against  the  acting  corporation  by  its  assumed 
corporate  name.^  To  proceed  against  it  by  its  corporate  name, 
would  in  efiect  be  an  admission  of  its  corporate  existence.^ 

II.     Eight  of  a  State  to  Exclude  Corporations  of  other 

States. 

May  do  Business  by  Comity.  Whatever  the  right  of  a  State 
may  be  to  exclude  corporations  of  a  foreign  nation  from  doing 
business  within  its  limits,  a  matter  which  it  is  not  our  purpose 
to  consider,  as  it  does  not  come  within  the  compass  of  our  subject, 
yet,  if  the  question  as  to  the  power  of  the  American  States  to 
exclude  corporations  of  their  sister  States  from  that  privilege  had. 
never  been  touched  upon  by  decisions  of  our  U.  S.  Supreme  Court, 
then  it  would  seem  to  us  that  under  that  part  of  sec.  2  of  article 
lY.,  of  the  United  States  constitution,  which  declares  that  "  the 
citizens  of  each  State  shall  be  entitled  to  all  privileges  and  im- 
munities of  citizens  in  the  several  States,"  no  State  can  exclude 
the  citizens  or  corporations  of  citizens,  of  any  others  of  the  States 
from  carrying  on  or  transacting  any  such  business  within  its 
limits,  as  its  own  citizens  or  corporations  of  its  own  citizens  are 
allowed  to  carry  on  and  transact  therein.  TJiis  subject,  however, 
has  repeatedly  been  before  the  United  States  Supreme  Court,  and 
the  uniform  ruling  has  been  that  the  provision  of  the  national 
constitution  above  referred  to,  relates  to  natural  persons,  and  not 
to  artificial  bodies  as  corporations,  and  that  the  privileges  and 
immunities  guaranteed  thereby  means  those  of  a  general  char- 
acter, allowed  to  a  State's  own  citizens,  and  not  those  special 
privileges  conferred  on  corporate  bodies. 

In  Lafayette  Ins.  Co.  v.  French,^  the  Supreme  Court  of  the 

Iowa,  357,  368;  Canal  Co.  v.  Railroad  State,  48  Ind.  236;  State  v.  The  Inde- 

Co.,  4  Gill  &  J.  1 ;  Trustees  of  Vernon  pendent  School  Dist.,  44  Iowa,  227 ; 

Society  v.  Hill,  6  Cow.  23 ;  People  v.  High  on  Extraordinary  Remedies,  § 

The  Society  for  Propagating  the  Gos-  661. 
pel,  1  Paine,  653.  ^  13  Pet.  519.     So  the  same  doctrine 

'  State  V.  Independent  School  Dist.,  is  substantially  asserted  by  tlie  same 

44  Iowa,  227;  Mud  Creek  Draining  learned  court,  Nelsox,  J.,  in  Ducat  r. 

Co.  V.  The  State,  43  Ind.  236;  People  Chicago,  10  Wall.  410;  also,  by  Jus- 

V.  Rensselaer  &  S.  R.  R.  Co.,  15  Wend,  tice  Field  in    Paul  v.  Virginia,  8 

114,  128.  Wall.   168,   and  still  earlier  in  The 

*  Mud  Creek  Draining  Co.  i).  The  Bank  of  Augusta  c.  Earle,  13  Pet.  519 ; 


286        FOREIGN  PRIVATE  CORPORATIONS. 

United  States,  Curtis,  J.,  saj:  "A  corporation  created  by  Indi- 
ana can  transact  business  iu  Ohio,  only  by  the  consent,  express 
or  implied,  of  the  latter  State.  This  consent  may  be  accompa- 
nied by  such  conditions  as  Ohio  may  think  fit  to  impose,  and 
these  conditions  must  be  deemed  valid  and  etfectual  by  other 
States,  and  by  this  court;  provided,  they  are  not  repugnant  to 
the  constitution  and  laws  of  the  United  States,  or  inconsistent 
with  those  rules  of  public  law  which  secure  the  jurisdiction  and 
authority  of  each  State,  from  encroachment  by  all  others,  or  that 
principle  of  natural  justice  which  forbids  condemnation  without 
opportunity  for  defense."  But  if  there  be  no  express  provision  of 
law  to  the  contrary,  such  permission  may  be  presumed  or  implied. ^ 
The  same  doctrine  is  held  in  Yirginia,  that  the  States  have  a 
right  to  regulate  the  terms  upon  which  foreign  insurance  com- 
panies may  do  business  as  corporations  within  their  territorial 
limits,  by  all  such  reasonable  regulations  as  do  not  infringe  upon 
the  jurisdiction  of  the  national  courts  or  rights  of  Congress 
under  the  constitution.^  And  that  the  privileges  and  immuni- 
ties secured  to  the  citizens  in  the  several  States  under  the  con- 
etitution  of  the  United  States  do  not  apply  to  legal  persons  or 
entities,  such  as  private  corporations  of  the  several  States. ^  In 
the  subsequent  case  of  Insurance  Co.  v.  Morse,^  the  supreme 

and  in  Covington  Drawbridge  Co.  v.  ed  by  this  provision  to  give  to  the 

Shepherd,  20  How.  227 ;  Ohio  «&  Miss,  laws  of  one  State  any  operation  in 

R.  R.  Co.  V.  Wheeler,  1  Black,  286.  other  States.    They  can  have  no  such 

In  all  those  cases,  the  doctrine  is  operation,  except  by  the  permission, 

recognized,  that  the  admission  of  a  express  or  implied,  of  those  States, 

foreign  corporation  to  transact  busi-  The  special    privileges  which  they 

ness  within  a  State  is  discretionarj'  confer  must,  therefore,  be  enjoyed  at 

with  the  State  itself,  and    depends  home,  unless  the  assent  of  other  States 

upon  permission  express  or  implied,  to  their  enjoj'ment  therein  be  given." 

In  the  language  of  the  learned  Justice  Paul  v.  Virginia,  supra. 

Field,  "  the  privilges  and  immunities  '  Storj-'s  Conf.  of  Laws.  §  38. 

secured  to  citizens  of  each  State,  in  '  Slaughter  v.  Commonwealth,   13 

the  several  States  by  the  provision  in  Gratt.  767. 

question,  are  those  privileges  and  im-  'Slaughter  c.   Commonwealth,  13 

munities  wliich  are  common  to  the  Gratt.  767,  773,  citing  Commonwealth 

citizens  in  the  latter  States,  under  their  n.  Milton,  and  Lexington  v.  Same,  12 

constitution  and  laws,  by  virtue  of  B.  Mon.  212 ;  Tatem  v.  Wright,  3  Zab. 

their  being  citizens.     Special  privi-  429;  Corfleld  t.  Coryell,  4  Wash.  C.  C. 

leges  enjoyed  by  citizens  in  their  own  871. 

States  are  not  secured  in  other  States  *  20  Wall.  445. 
by  this  provision.    It  was  not  intend- 


EIGHT    OF    STATE    TO    EXCLUDE    CORPOEATIOXS.      287 

court  of  the  United  States,  Hunt,  J.,  say:  "We  do  not  consider 
the  question  whether  the  State  of  "VYisconsin  can  entirely  exclude 
such  corporations  from  its  limits,  nor  what  reasonable  terms 
they  may  impose  as  a  condition  of  their  transacting  business 
within  the  State.  These  questions  have  been  before  the  court  in 
other  cases,  but  they  do  not  arise  here."  And,  again,  in  Doyle 
V.  The  Continental  Insurance  Co.^'^  the  court  reassert  the  doc- 
trine that  a  State  may  impose  terms  upon  private  corporations 
of  other  States  doing  business  within  its  limits  not  inconsistent 
with  the  rights  and  jurisdiction  of  the  Federal  government  and 
courts;  and  having  given  permission,  may  revoke  it  at  will.^ 
But,  qucere,  as  to  this  without  cause,  if  contract  rights  have 
vested  on  the  faith  of  such  permission? 

A  State  cannot  Impose  Terms  which  Conflict  with  the  United 
States  Constitution  and  Laws.  But  whatever  other  terms  of 
doing  business  in  another  State  may  be  imposed  upon  such  cor- 
poration, it  is  well  settled  that  the  terms  must  not  be  such  as 
impair  the  rights  of  the  National  government  or  courts  under 
the  constitution. 

Hence  a  State  law  requiring  foreign  corporations,  as  a  condi- 
tion to  doing  business  in  the  State,  to  enter  into  a  stipulation  to 
keep  in  such  State  an  attorney  or  agent,  on  whom  service  in  suits 
against  the  corporation  may  be  made  as  on  the  corporation,  and 
agreeing  not  to  remove  suits  against  such  corporation  from  the 
State  to  the  United  States  court,  is  invalid  as  violating  the  con- 
stitution; and  such  stipulation,  so  far  as  regards  the  removal  of 
suits,  is  ineffectual  to  prevent  removals,  and  that  the  jurisdiction 
of  the  United  States  court  cannot  be  affected  by  either  such 
statute  or  stipulation. ^  But  where  such  statute  also  requires  in 
addition  to  such  stipulation,  and  as  a  prerequisite  to  so  trans- 
acting business  in  the  State,  a  license  authorizing  it  so  to  do, 
and  requires  such  license  to  be  cancelled  by  State  authority  in 

'  4  Otto,  535.    See,  also,  Ducat  v.  ^  Insurance  Co.  ».  Morse,  20  Wall. 

Chicago,  10  Wall.  410;  Lafayette  Ins.  445;  Doyle  v.  The  Continental   Ins. 

Co.  V.  French,  18  How.  404;  Christ  Co.,  4  Otto,  535;    Insurance   Co.  v. 

Church  V.  Philadelphia,  34  How.  300 ;  Dunn,  19  Wall.  214 ;  Stevens  v.  Phcenix 

People  V.  Roper,  35  N.  Y.  629 ;  People  Ins.  Co.,  41  N.  Y.  149 ;  Holden  v.  Put- 

v.  Commissioners  of  Taxes,  47  N.  Y.  nam  Ins.  Co.,  46  N.  Y.  1 ;  Hadley  v. 

501.  Dunlap,  10  Ohio  St.  1.     See,   also, 

^  Doyle  V.  Continental  Ins.  Co.,  4  Home  Ins.  Co,  v.  Davis,  29  Mich.  238. 
Otto,  535. 


288        FOREIGN  PRIVATE  CORPORATIONS. 

the  event  of  the  parties  removing  a  suit  in  viohition  of  such 
agreement,  as  is  the  case  in  the  statute  of  Wisconsin  on  that 
subject,  it  is  lield  by  the  State  court,  since  the  decision  in  the 
Insiwanee  Co.  v.  Morse^  above  referred  to,  that  notwitlistanding 
said  decision  of  the  United  States  supreme  court  as  to  the  insuffi- 
ciency of  such  legislation  to  prevent  a  removal  of  a  suit,  that 
nevertheless  the  State  court  may  rescind  such  license  if  such 
removal  be  made.^  How  far  this  act  of  rescinding  a  license 
already  existing  for  the  mere  doing  of  what  the  United  States 
supreme  court  has  held  to  be  lawful  will  be  upheld,  has  not,  so 
far  as  we  know,  been  decided  by  that  court.  But  whatever  the 
right  of  exclusion  from  doing  business  locally  and  entirely  con- 
tined  within  a  State,  it  is  certain  that  no  State  can  exclude  a 
corporation  which  is  engaged  in  tn^er-State  transportation  or 
commerce, 2  nor  an  inter-State  corporation  organized  under  or  in 
accordance  with  a  law  of  the  United  States. ^ 

In  the  case  here  cited  of  Pensacola  Telegraph  Compfiny  v. 
The  Western  Union  Telegraph  Company^  the  supreme  court  of 
the  United  States,  adverting  to  the  ruling  in  Paul  v.  Virginia,* 
to  the  effect  that  a  State  might  exclude  a  corporation  of  another 
State  from  its  jurisdiction,  say  that  the  case  of  Paul  v.  Virginia 
was  not  in  reference  to  a  corporation  engaged  in  inter-State  com- 
merce, and  that  if  it  had  been  then  very  different  questions 
would  have  been  presented,  as  is  shown  by  the  terras  of  the 
opinion  in  that  case.'' 

III.     Foreign  Corporations  mat  do  Business  in  a  State,  if  not 
Prohibited.     What  Law  Governs  their  Contracts. 

No  principle  of  the  law  is  better  settled  than  that  corporations 
aggregate  of  a  private  nature,  created  in  one  State,  may  do  such 
business  in  other  States  as  their  charter  authorizes  where 
created,  if  such  business  is  not  inconsistent  witli  the  laws  or 
policy  of  such  other  States,  and  their  contracts  in  reference 
thereto,  if  otherwise  lawful,  will  be  enforced.' 

1  State  V.  Doyle,  40  Wis.  175,  220.  em  Union  Telegraph  Co.,6  Otto,  12, 13. 

*  Pensacola  Telegraph  Co.  v.  West-  *  Conn.   ^Mutual   Life    Ins.    Co.  v. 

em  Union  Telegraph  Co.,  6  Otto,  1.  Cross,  18  Wis.  109;  Thompson  v.  Wa- 

»  Ibid.  ters,  25  Mich.  214.    See,  supra,  §  2  of 

«  8  Wall.  168.  this  chapter.    See,  further,  Baltimore, 

»  Pensacola  Telegraph  Co.  ».  West-  etc.,  R.  R.  Co.  v.  Glenn,  28  Md.  287; 


^.'nA-T'    'AW    GOVEHiSrS    THEIE    CONTRACTS.  289 

The  same  principle  is  equally  well  settled  that  they  have  capa- 
'Aty  to  sue  in  the  courts  of  such  other  States,  in  action  ex  con- 
tractu.^ But  a  corporation  of  one  State  making  contracts  in 
another  State  does  so  by  comity  of  the  latter.  Its  power  to  con- 
tract, however,  and  the  contract  itself,  is  in  reference  to  the  law 
of  its  charter  and  the  laws  of  the  State  wherein  it  is  created 
and  exists.  These  govern  the  nature,  obligation  and  interpreta- 
tion of  the  contract,  and  not  the  local  law  of  the  State  where 
the  contract  is  made,  as  ordinarily  would  be  the  case  in  reference 
to  contracts  between  natural  persons.  Bat  except  so  far  as  differ- 
ent by  reason  of  the  artificial  character  of  the  corporate  person, 
its  powers,  capacities  and  purposes,  the  local  law  of  the  contract 
will  apply.2  Yet  a  foreign  corporation  doing  business  as  a  rail- 
road company  in  another  State,  by  extending  the  line  of  its  road 
therein,  by  permission  of  law  of  such  State,  is  deemed,  as  to 
contracts  made  therein  by  it,  to  possess  the  powers  and  as  sub- 
ject to  the  liabilities  of  similar  corporations  created  by  the  State 
into  which  it  is  so  allowed  to  enter,  as  settled  by  the  adjudica- 
tions of  the  courts  of  such  State;  and  it  will  not  be  permitted, 
after  making  contracts  therein,  in  the  exercise  of  privileges  thus 
conceded  to  it,  to  then  set  up  incapacity  to  thus  contract  under 
the  law  of  the  State  where  it  was  chartered.  ^ 

A  foreign  corporation  authorized  by  statute  of  another  State 
to  construct  an  extension  of  its  road  therein,  and  granting  it  all 
the  privileges  and  immunities,  and  subjecting  it  to  all  the  restric- 
tions conferred  and  imposed  on  it  by  law  in  the  State  wherein  it 
is  created,  though  not  made  a  domestic  corporation  by  such  grant, 
is,  nevertheless,  so  far  domesticated  as  to  be  exempt  from  process 
of  attachment,  when  by  the  law  of  its  creation  it  is  so  exempt.'* 
Such  grant  and  the  terms  thereof  of  the  State  wherein  it  is  thus 
allowed  to  enter  and  do  business,  are  so  far  of  the  nature  of  a 

Williams  v.  Creswell.  51  Miss.  817;  Mining  Co.,  4  Allen,  580;  Bank  of 

Newburg  Petroleum  Co.  v.  Weare,  27  Augusta  v.  Earle,  13  Pet.  519;  Arms 

Ohio  St.  343;    1   Potter  on  Corpora-  c.  Conant.  36  Vt.  744;  Wood  Hydraulic 

tions.  g§  271,  272.  Co.  v.  King,  45  Geo.  34. 

"Conn.    Mutual    Life   Ins.    Co.   v.  »  Milnor®.  New  York  «&  N.  H.  R.R. 

Cross.  18  Wis.  109 ;  Bank  of  Augusta  Co.,  53  N.  Y.  363. 

t.  Earle,  13  Pet. 519.    See,mpra,%l  ••Martin  v.  Mobile  &  Ohio  R.  R. 

of  this  chapter.  Co.,  7  Bush,  116. 

"  Hutchins  v.  New  England  Coal 
19 


290        FOREIGN  PRIVATE  CORPORATIONS. 

contract  that  the  same  may  not  be  impaired  by  subsequent  enact- 
ments or  conduct  of  the  State.  ^ 

IV.     Inter-State  Power  to  Hold  Lands. 

Although  corporations  created  by  the  laws  of  a  State,  and 
authorized  to  acquire  and  hold  lands  for  the  purposes  of  the 
corporation,  cannot  take  and  hold  lands  in  another  State  without 
permission  therefor  expressed  or  implied,  and  although  a  law  of 
such  other  State  may  render  lands  thus  acquired  and  held  sub- 
ject to  escheat  or  forfeiture  to  the  State,  yet  lands  thus  acquired 
and  held  by  trustees  for  use  of  such  foreign  corporation  are  right- 
fully held  and  possessed  by  such  trustees  and  corporation  until 
title  is  divested  by  the  necessary  legal  proceedings  of  the  State 
set  on  foot  for  that  pui*])ose.2 

Hold  Lands,  if  no  Inhibition.  If  no  statutory  inhibition,  cor- 
porations created  in  one  State  may  sue  in  another  State;'  may 
take  lands  in  security  for  debts,  and  enforce  such  security;*  may 
make  promissory  notes  and  other  contracts  not  violatory  of  the 
laws  of  such  other  States ;'  and  may  loan  money  on  mortgage 
therein,  if  authorized  by  its  charter  to  so  loan,  where  incorpor- 
ated, and  not  prohibited  by  the  laws  of  the  State  wherein  the 
loan  is  made.^  But  foreign  railroad  corporations,  authorized 
by  law  of  a  State  to  do  business  therein  are  thereby  doubtless 
authorized  to  take  and  hold  necessary  lands. 

V.     Inter-State  Suit  against  Stockholders  to  Enforce 
Individual   Liability. 

Neither  an  action  at  law,  or  a  bill  in  equity,  will  lie  against  a 
stockholder  of  a  corporation  to  enforce  individual  statutory  lia- 
bility for  corporate  debts,  in  a  court  of  a  State  other  than  that 
wherein  the  corporation  exists  in  law,  or  was  by  law  created, 

>  Martin  v.  Mobile  &  Ohio  R.  R.         »  New  York  Dry  Dock  Co.  c.  Hicks, 

Co.,  7  Bush,  116.  5  McL.  111. 

«Runyan    v.  Coster,   14  Pet.  122;  « Ibid. 

Thompson  v.  Waters,  25  ^lich.  214,  *  New  York  Floating  Derrick  Co. 

See,  also.  White  v.  Howard,  38  Conn.  v.  N.  Jersey  Oil  Co.,  3  Duer.  648 ; 

342;  Carroll  e.  East  St.  Louis,  67  111.  Thompson  tj.  Waters,  25  Mich.  214. 
568 ;  U.  S.  Trust  Co.  v.  Lee,  73  111.  142 ;         •  Farmers'  Loan  &  Trust  Co.  v.  Mc- 

Claremont  v.  Royce,  42  Vt  730.  Kinney,  6  McL.  1. 


CONSOLIDATION    OF    EAILKOAD    CORPOEATIONS.       291 

although  the  defendant  reside  in  such  other  State,  or  be  found 
and  served  with  process  therein. i 

Such  liability,  in  New  Hampshire,  being  in  virtue  of  the  stat- 
ute, it  cannot  be  enforced  in  the  courts  of  Massachusetts,  inas- 
much as  the  statute  of  New  Hampshire  imposing  the  liability 
and  defining  the  remedy  has  no  extra-territorial  force,  and  there- 
fore will  not  sustain  an  action  in  another  State.  ^  Nor  will  the 
courts  of  another  State  enforce  the  right  upon  principles  of 
comity,  when  the  remedy  prescribed  is  of  a  character  suitable 
only  to  the  local  jurisdiction;  as,  for  instance,  where  the  remedy 
is  by  bill  in  equity,  in  pursuing  which,  by  the  settled  principles 
of  equity  practice,  the  other  creditors  and  the  corporation  itself 
should  be  made  parties;  for  a  foreign  court  will  not  assume  con- 
trol of  the  affairs  of  a  corporation  of  another  State.' 

VI.     Intee-State  Consolidation  of  Railroad  Coeporations. 

Does  not  Make  them  one  Corporation.  The  consolidation  of 
railroads  existing  in  different  States,  and  organized  under  the 
laws  thereof,  respectively,  as  separate  and  distinct  organizations, 
does  not  make  them  one  corporation  or  company,  nor  affect  them 
in  like  manner  as  does  the  consolidation  of  such  corporations 
when  each  is  situated  within  and  is  organized  under  the  laws  of  the 
same  State.  And  though  a  corporation  be  created  by  two  States, 
each  of  like  name  and  import,  the  one  in  one  State  and  the  other 
in  the  other,  and  the  two  having  such  a  physical  connection  as 
to  make  them  practically  one  line  and  road,  yet  they  are  not  the 
same  legal  entity  in  each  State,  but  each  is  a  separate  corporation 
and  organization.  The  effect  is  merely  to  create  between  them  a 
community  of  interest  in  case  the  two  be  consolidated.'* 

Unity  of  Control  and  of  Contract.    Though  such  is  the  abstract 

'  Erickson  «.  Nesmith,4  Allen,233;  mith,  supra;  Smith  v.  Mutual   Life 

Derrickson  v.  Smith,  27  N.  J.  Law,  Ins.  Co.,  14  Allen,  336. 

166 ;  First  Nat.  Bank  v.  Price,  33  Md.  «  Erickson   v.    Nesmith,   15  Gray, 

487;  Scoville??.  Canfleld,14John.338.  221. 

The  courts,  however,  seem  to  hold  '^  Erickson  v.  Nesmith,  4  Allen,  238 ; 

that  where  the  liability  of  the  stock-  Hadley  v.  Russell,  40  N.  H.  109. 

holders  is  in  the  nature  of  a  contract,  *  Racine  &  Miss.  R.  R.  Co.  v.  The 

and  does  not  conflict  with  the  policy  Farmers'  Loan  &  Trust  Co.,  49  111. 

and  laws  of  the  fo7'vm,  that  such  lia-  331 ;  Farnum  v.  The  Blackstone  Canal 

bility  will  be  enforced.    SeeHealyt).  Co.,  1  Sum.  47;  Muller  o.  Dows,  4 

Root,  11  Pick.  389.    Erickson  v.  Nes-  Otto,  444. 


292  FOREIGN    PRIVATE    CORPORATIONS. 

doctrine  and  technical  force  of  the  law,  yet  when  such  consolida- 
tion is  effected  by  permission  of  law  of  the  two  States,  then, 
if  the  united  line  be  practically  placed  under  one  and  the  same 
control,  and  contracts  are  made  by  such  controlling  power,  as- 
suming a  unity  of  action  and  liability,  courts  will,  for  the  pro- 
tection of  others  interested,  and  to  enforce  good  faith,  hold  that 
such  contracts  are  made  by  each  of  such  corporations.  ^ 

This  same  question  of  the  effect  of  such  consolidation  arose  ia 
Indiana,  in  Paine  v.  The  Lake  Erie  <&  Louisville  Railroad 
Company ^^  but  the  parties  being  severally  before  the  court,  it  was 
found  that  full  justice  could  be  done  without  a  formal  decision 
of  the  question.  The  supreme  court  of  Indiana  said,  however, 
in  that  case:  "  A  very  grave  question  is  presented  in  the  argu- 
ment as  to  the  power  of  two  States  to  create  one  corporation. 
It  is  claimed  that  to  maintain  the  action,  the  consolidation  must 
have  resulted  in  the  formation  of  one  company,  and  that  this  i& 
simply  impossible.  It  is  urged  that  it  might,  with  as  much 
propriety,  be  argued  that  a  child  may  have  two  mothers,  as  that 
two  States  can  create  one  corporation.  Under  our  view  of  the 
case,  the  question  becomes  of  no  importance.  It  is  admitted  by 
the  counsel  for  the  appellants  that  the  effect  of  the  consolidation 
might  be  to  create  two  corporations  with  the  same  name  and 
stockholders  a  unity  of  stock  and  interests.  This  suit,  in  our 
judgment,  can  well  be  maintained  under  either  view.  If  there 
is  but  one  corporation,  as  a  result  of  the  consolidation,  then  the 
suit  is  undoubtedly  well  brought;  if  there  are  two  corporations, 
then  all  the  parties  necessary  for  a  complete  settlement  of  the 
matter  in  dispute  are  before  the  court."' 

Unity  of  Interest,  but  not  of  Entities.  The  case  cited  of 
Farmim  v.  The  Blackstone  Canal  Co.^  involved  the  consolidation 
of  two  corporations  created  by  different  States.  The  learned  Judge 
Stoky,  held,  that  whiLe  such  consolidation  created  a  unity  of  in- 
terest of  the  two,  yet  it  did  not  follow  that  either  of  them  ceased, 
by  reason  tliereof,  to  exist,  but  that  their  powers,  rights  and  duties 
remained  distinct  and  general,  as  before.     That  there  was  no  cor- 

'  Racine  &  Miss.  R.  R.  Co.  v.  Tho  «  81  Ind.  283.    And  as  to  the  saving 

Farmer's  Loan  &  Trust  Co.,  49  111.  of  such  rights,  see,  also,  Phila.&Wil- 

331 ;  Bissell  v.  The  Mich.  Southern  &  raington  R.  R.  Co.  v.  Marjland,  10 

N.  Indiana  R.  R.  Co.,  22  N.  Y.  258.  How.  878. 

« 81  Ind.  283. 


POLICE    POWER    OVER.  293 

porate  identity,  and  that  neither  was  merged  in  the  other;  neither 
was  there  any  merger  of  the  two.  The  union  was  of  interests 
and  of  stocks,  but  not  of  personal  or  legal  identity  or  existence.  ^ 
Domesticated.  In  Illiode  Island,  however,  it  is  held  that  when 
corporations  of  two  different  States  are  united  by  legislative  en- 
actment of  such  States,  each  of  such  corporations  is  thereby 
domesticated  in  each  State,  and  therefore  neither  is  subject  to 
attachment  process  in  either  State,  inasmuch  as  only  foreign  cov- 
porations  are  subject  to  proceedings  by  attachment.  2  Where 
two  such  corporations  are  created  as  one  line  by  legislative  enact- 
ments of  different  States,  then,  in  proceedings  to  foreclose  a 
mortgage  upon  the  works  thereof  situated  in  the  different  States, 
jurisdiction  of  a  United  States  circuit  court  may  be  exercised  to 
enforce  foreclosure  and  sale  in  an  entire  proceeding  against  the 
whole  interest  in  each  State,  if  the  court  obtains  jurisdiction  of 
the  parties  in  interest,  notwithstanding  a  part  of  the  property  be 
locally  situated  in  a  State  other  than  that  where  the  court  is  sit- 
ting that  makes  the  decree  of  sale.^ 

YII.     Police  Power  over  Foreign  Corporations  in  a  State. 

Subjects  of  Police  Power.  All  persons,  whether  natural  or 
artificial,  doing  business  within  a  State,  are  subject  to  the  police 
powers  and  regulations  thereof,  other  than  such  as  are  within  the 
jurisdiction  of  the  national  government,  as  to  the  regulation  of 
commerce.  Thus,  a  railroad  corporation  of  one  State  operating  a 
railroad  in  another  State  is  subject  to  the  police  power  of  the  latter 
State;  and  so  is  that  portion  of  its  road  which  is  situated  therein. 
It  results  from  this  principle  that  such  road  and  corporation  is 
subject  to  the  State  law  requiring  railroads  to  be  fenced,  or  else 
to  be  held  liable  to  pay  for  injuries  to  live  stock  injured  on  such 
roads.  The  requirement  is  of  a  police  nature,  being  intended  to 
promote  the  safety  of  the  traveling  public,  as  well  as  to  guard 
against  injury  to  animals  which  may,  without  such  fence,  go 
upon  the  roads.*     For,  although  such  State  law  has  no  extra- 

'  Faruum  v.  The  Blackstone  Canal  ^  Muller  v.  Dows,  4  Otto,  444 ;  Mc- 

Co.,  1  Sum.  46,  62.    See.  also,  Bissell  Elrath  v.  Pittsburgh  &  Steubenville 

<p.  Southern  Mich.  &  N.  Indiana  R.  R.  R.  R.  Co.,  55  Penn.  St.  189. 

Co.,  22  N.  Y.  258.  *  Purdy  v.  New  York  «&  N.  H.  R.  R. 

*  Sprague  v.  Hartford,  Providence  Co.,  61  N.  Y.  353. 
&  Fishkill  R.  R.  Co.,  5  R.  I.  233. 


294        FOREIGN  PRIVATE  CORPORATIONS. 

territorial  force,  and  therefore  cannot  reach  the  foreign  corpora- 
tion in  the  otlier  State  wherein  it  is  created  and  exists,^  yet  it 
applies  in  tlie  same  force  to  railroads  in  the  State  belonging  to 
and  operated  by  foreign  corporations  as  it  does  to  such  roads  as 
belong  to  domestic  corporations,  and  the  power  thereof  may  not 
only  be  brought  to  bear  upon  the  roads,  but  also  upon  the  for- 
eign owners  operating  the  same,  where  they  have  agents  or 
officers  subject  by  law  to  process  as  against  the  company  resident 
within  the  State.' 

'  Thompson  v.  Whitman,  18  Wall.         '  Purdy  v.  New  York  &  New  Ha- 
467,  and  ante,  Ch.  YIII.,  §  1.  ven  R.  R.  Co.,  61  N.  Y.  853. 


BECEIVEES   AND   TEUST   FUNDS.  295 


CHAPTEE  XXVII. 

KECEIVERS,    OTHER   TRUSTEES,    AND   TRUST  FUNDS. 

I.    Receivers  of  State  Courts  Have  no  Power  in  Other  States. 
II.    State  Courts  Have  no  Power  Over  Effects  in  Hands  of  a 
Receiver  op  a  United  States  Court. 

III.  Receivers  of  Courts  Cannot  Sue  Each  Other  as  Such. 

IV.  Trust  Funds  Will  be  Followed  Into  Other  States. 

I.    Recevers   of   State   Courts   Have   no   Power  in   Other 

States. 

No  Extra  Territorial  Authority.  The  powers  of  a  receiver  are 
co-extensive  only  with  the  jurisdiction  of  the  court  making  his 
appointment.  They  do  not  reach  property,  although  movable, 
which  is  situated  beyond  the  confines  of  the  State.  He  is  the 
representative  of  the  court,  and  from  it  derives  his  authority, 
and  inasmuch  as  the  authority  of  the  court  does  not  extend  into 
other  sovereignties  than  that  in  which  the  court  exists,  neither 
can  the  receiver's  authority  pass  those  bounds.  Money  and  prop- 
erty in  his  charge  are  in  the  custody  of  the  law,  and  whosoever 
would  show  himself  entitled  to  it  must  do  so  through  the  same 
court,  for  the  receiver  is  the  creature  of  the  court.  The  court 
carries  out  through  him  such  of  its  powers  as  are  to  be  enforced 
in  pais^  he  can  do  only  such  acts  as  the  court  directs,  or  the 
laws  permit;  hence,  he  cannot  sue  in  a  different  State  for  choses 
in  action  or  for  property  of  the  debtor.  His  actions  and  powers 
are  restricted  to  the  State  of  his  appointment.'  But  although 
jurisdiction  of  the  State  court  does  not  extend  to  property  in 
another  State  so  as  to  reach  it  by  process  of  sequestration  or  exe- 
cution, or  through  a  receiver;  yet  if  the  defendant  having  pos- 
session thereof  be  found  within  the  jurisdiction  of  the  court,  it 
is  said  he  may  be  compelled  to  bring  the  property  within  the 

'  Booth  V.  Clark,  17  How.  322;  Farmei's'  &  Merchants'  Ins.  Co.  v.  Needles, 
52  Mo.  17. 


296  RECEIVERS    AND    TRUST    FUNDS. 

jurisdiction,  if  personal  property,  or  if  real  property  to  execute 
such  conveyance  thereof  as  will  pass  title  according  to  tlie  lex 
loci  rei  sitcB.^  But  tlie  receiver  liimself  cannot,  as  such,  pass 
the  bounds  of  the  State  to  control  such  pro])erty.  In  the  lan- 
guage of  Wayne,  J.,  in  Booth  v,  Glark^  "  He  has  no  eoetra  terri- 
torial power  of  official  action;  nor  can  the  court  appointing  him 
confer  such  authority,  or  enable  him  to  go  into  a  foreign  juris- 
diction to  take  possession  of  a  debtor's  property;  nor  any  power 
which  can  give  him,  upon  principles  of  comity,  a  privilege  to  sue 
in  a  foreign  court  or  another  jurisdiction  as  the  judgment  cred- 
itor himself  migbt  have  done,  where  his  debtor  may  be  amenable 
to  the  tribunal  which  the  creditor  may  seek.* 

II.  A  State  Court  Has  no  JuRiSDionoN  of  Effects  in  The 

Hands  of  a  Keceivee  of  United  States  Court. 

A  State  court  has  no  jurisdiction  in  regard  to  property  which 
is  in  the  hands  of  a  receiver  appointed  by  a  United  States  court. 
Hence,  wliere  a  railroad  and  its  appurtenances  has  been  placed 
in  the  possession  of  such  receiver  by  authority  of  a  Federal  court, 
the  State  courts  have  no  jurisdiction  of  a  foreclosure  proceeding 
to  foreclose  a  mortgage  against  the  same.  Such  a  proceeding 
would  involve  a  direct  interference  with  the  authority  of  the 
United  States  court,  and  would  amount  to  contempt  thereof. 
To  enable  a  party  to  resort  to  any  separate  tribunal  other  than 
the  one  thus  appointing  a  receiver,  leave  therefor  must  be  had  of 
such  court.  3 

III.  RECEn'EB  of  Different  Courts  Cannot  Sub  Each  Other 

AS  Such. 

Not  Suable  Without  Leave  of  Court.  A  trustee,  or  receiver 
of  property  and  assets  of  an  insolvent  person  or  corporation, 
who  is  appointed  such  by  a  State  court,  before  any  proceedings 

'Booth  V.  Clark,  17  How.  322,  332.  See,  also.  Ex  parte  Norwood,  3  Biss. 

M7  How.  338.   Sec,  further,  Warren  504. 

«.  Union   Nat.  Bank,  7  Phila.   156;  »Mil.  «&  St.  Paul  R.  R  Co.  «.  Mil. 

Hope  Mutual  Life  Ins.  Co.  v.  Taylor,  &  Minn.  R.  R,  Co.,  20  Wis.  16o,  174; 

2  Rob.   (N.  Y.)  278.     See,  however,  Chautauqua  Co.  Bank  v.  Risley,  19  N. 

cases    holding  a  contrary  doctrine,  Y.  369 ;  Wiswall  «.  Sampson,  14  How. 

Hoyt  V.  Thompson,  5  N.  Y.  320 ;  Hunt  52. 
«.  Columbian  Ins.  Co.,  55  Maine,  290. 


CANNOT  SUE  EACH  OTHER  AS  SUCH.       297 

adverse  tliereto  set  on  foot  in  a  United  States  court,  and  wliose 
duties  arise  under  the  laws  of  the  State  in  regard  to  his  trust, 
cannot  be  sued  in  reference  to  the  subject  matter,  thereof  in  a 
-circuit  court  of  the  United  States,  altliough  the  amount  in  con- 
troversy and  citizenship  of  the  parties  are  sufficient  to  enable  the 
•court  to  take  jurisdiction  in  a  proper  case  for  the  exercise 
thereof.^ 

Trust  Fund  Not  Subject  to  Levy.  Nor  can  the  trust  fund  be 
levied  on  or  disturbed  in  the  hands  of  the  trustee  by  process  of 
execution  from  any  other  court. ^ 

Exceptionable  Cases.  There  are  cases  which  are  exception- 
able, where  a  creditor  has  a  specific  lien,  as  a  mortgage  deed  for 
security  of  his  debt  created  by  the  debtor  himself,  the  enforce- 
ment of  which  cannot  interfere  with  the  trust  fund  in  the  hands 
of  the  trustee.  Then  suit  to  foreclose  and  enforce  such  lien  lies 
in  a  difterent  court  than  the  one  from  which  the  trusteesliip 
emanates,  as  in  a  cii'cuit  court  of  the  United  States,  for  instance, 
the  citizenship  and  amount  involved  being  sufficient;^  or,  as  we 
suppose,  in  the  same  court,  if  possessed  of  the  proper  jurisdic- 
tional powers  to  enable  it  to  dispose  of  or  adjudicate  the  matter. 
For  the  right  to  a  specific  lien  carries  with  it  the  right  to  enforce 
it,  which  is  not  displaced  by  death  or  insolvency  of  the  debtor. 
Some  of  the  cases  cited  here  arose  in  relation  to  administrations 
of  deceased  persons;  but  the  general  rule  is  none  the  less  appli- 
cable on  that  account,  for  administrators  and  executors  are  trustees, 
and  in  the  exercise  of  the  powers  and  performance  of  their  duties 
they  act  as  such,  under  the  control  of  the  court  from  whence 
emanates  their  appointment. 

In  the  leading  case  cited  above,  the  Agricultural  Bank  of  Mis- 
sissippi was  proceeded  against  under  a  law  of  that  State  and  its 
charter  declared  forfeited,  and  Peale  was  appointed  trustee  and 
assignee  of  the  bank  as  sole  representative  of  the  corporation. 
This  proceeding  and  appointment  was  in  the  State  court.  The 
plaintiff  in  the  original  action  brought  suit  against  tlie  trustee 
in  the  circuit  court  of  the  United  States  for  the  District  of  Lou- 
isiana, setting  up  certain  claims  against  the  defunct  bank,  and 

'Peale  v.  Phipps,  14   How.  368;  Robinsou  v.  Atlantic  &  G.  W.  R.  R. 

Vaughan  v.  Northup,  15  Pet.  1.  Co.,  66  Penn.  St.  160;  Skinner  v.  Max- 

2  Williams  v.  Benedict,  8  How.  107;  well,  68  N.  C.  400. 

Wiswall  V.   Sampson,    14  How.  52 ;  ^  Erwin  v.  Lowry,  7  How.  173. 


298  RECEIVERS   AND   TRUST   FUNDS. 

claiming  to  enforce  their  payment  against  the  said  trustee  and  the 
trust  estate  in  his  hands.  A  decree  in  favor  of  the  plaintiff  was 
accordingly  had  in  the  circuit  court,  but  the  case  coming  up  in 
the  United  States  supreme  court,  among  other  points  the  question 
of  jurisdiction  in  the  circuit  court,  the  supreme  court  held  that 
there  was  no  jurisdiction  in  the  court  below,  and  reversed  the 
decree  and  directed  judgment  to  be  entered  in  the  circuit  court 
for  Peale,  who  was  the  plaintiff  in  error,  but  defendant  in  the 
court  below.  The  court,  in  that  case,  Taney,  C.  J.,  say :  "  We 
see  no  ground  upon  which  the  jurisdictioTi  of  the  court  can  be 
sustained.  The  plaintiff  in  error  held  the  assets  of  the  bank  as 
the  agent  and  receiver  of  the  court  of  Adams  county,  and  subject 
to  its  order,  and  was  not  authorized  to  dispose  of  the  assets,  or  to 
pay  any  debts  due  from  the  bank,  except  by  the  order  of  the 
court.  He  had  given  a  bond  for  the  performance  of  this  duty, 
and  would  be  liable  to  an  action  if  he  paid  any  claim  without 
the  authority  of  the  court  from  which  he  received  his  appoint- 
ment. Tlie  property,  in  legal  contemplation,  was  in  the  custody 
of  the  court  of  which  he  was  the  officer,  and  had  been  placed 
there  by  the  laws  of  Mississippi."  And  that,  "  no  other  court 
had  a  right  to  interfere  with  it,  or  to  wrest  it  from  the  hands  of 
its  agent,  and  thereby  put  it  out  of  his  power  to  perform  his 
trast."^  It  is  seen  here,  then,  that  the  very  ground  upon  which 
jurisdiction  was  denied  in  this  case  was  the  principle  so  often 
asserted  in  the  courts,  that  the  jurisdiction  of  another  court, 
having  previously  attached  to  the  case  and  subject  matter  of  the 
suit,  no  other  court  can  interfere  therewith  except  in  a  properly 
appellate  character. 

The  case  which  we  have  here  cited  of  Williams  v.  Benedict  is 
also  a  strong  illustration  of  the  same  principle.  By  the  law  of 
Mississippi  it  became  the  duty  of  the  orphans'  court,  where 
estates  were  insolvent,  to  order  the  property  to  be  sold  by  the 
executor  or  administrator;  cause  the  claims  of  creditors  to  be 
audited;  and  after  deducting  expenses  of  administration,  last  sick- 
ness and  funeral  charges,  distribute  the  proceeds  of  sale  among 
the  creditors,  a  like  per  centum  of  the  claims  of  each.  A  judg- 
ment creditor  who  had  obtained  his  judgment  against  the  admin- 
istrator before  insolvency  of  the  estate  was  declared,  caused  exe- 

»  Peale  v.  Phipps,  14  How.  368,  374,  375, 


FOLLOWED    IXTO    OTHEE    STATES.  299 

cution  from  the  United  States  circuit  court  in  the  northern  dis- 
trict of  the  State,  wherein  the  judgment  was  rendered,  to  be 
levied  upon  the  property  of  the  estate  upon  which  the  judgment 
would  have  been  a  lien  in  case  tlie  estate  had  been  solvent.  A 
bill  was  filed  by  the  administrator  to  restrain  by  injunction  the 
proceedings  on  execution,  and  though  dismissed  in  the  circuit 
court,  the  supreme  court  of  the  United  States  on  appeal  reversed 
the  decision,  and  sustained  the  bill  upon  the  ground  that  juris- 
diction of  the  orphans'  court  had  attached  to  the  assets,  and  that 
they  were  in  custody  of  the  law  and  could  not  be  seized  by  pro- 
cess of  another  court,  i  So,  in  Wiswall  v.  Sampson,  it  was  held 
that  lands  in  the  charge  of  a  receiver  of  a  chancery  court  of  the 
State  of  Alabama  were  not  liable  to  levy  and  sale  on  an  execu- 
tion in  the  hands  of  the  marshal,  issued  out  of  the  circuit  court 
of  the  United  States  for  the  district,  notwithstanding  the  judg- 
ment was  a  lien  in  law  upon  the  lands,  and  the  execution  was 
levied  before  the  control  or  possession  of  the  receiver  attached, 
and  that  the  remedy  of  the  judgment  creditor  was  by  applica- 
tion to  the  same  court  that  appointed  the  receiver,  and  that  tliere- 
upon  his  rights  and  priority,  if  he  had  the  latter  would  be 
respected  in  the  distribution  of  the  funds  in  court.  2 

In  Yaughan  v.  Northup^  it  was  held  that  suit  would  not  lie 
against  an  administrator  in  another  State  than  where  administra- 
tion was  obtained,  for  the  reason  that  the  administrator  is  bound 
by  the  law  and  his  bond  to  account  for  all  the  assets  coming  into 
his  hands  to  the  courts  of  the  government  from  which  he  derives 
his  grant  of  administration.  This,  too,  although  the  assets  had 
been  received  by  the  administrator  in  the  State  in  which  he  was 
sued.* 

lY.    Tetjst  Funds  will  be  Followed  into  Other  States. 

Trust  funds  will  be  followed  and  applied  wherever  they  may 
be  found,  and  so  of  trust  estates  in  lands,  if  converted  into  or 
exchanged  for  lands  in  another  State,  equity  will  hold  the  land 
in  the  other  State  thus  acquired  subject  to  the  original  trust, 
except  as  may  be  necessary  to  give  protection  to  innocent  holders 

» Williams  «.  Benedict,  8  How.  107.         « 15  Pet.  1. 
« 14  How.  53.  *  Ibid. 


300  RECEIVERS    AND   TRUST   FUNDS. 

as  ho7ia  fide  purchasers.^  The  question,  however,  as  to  exist- 
ence and  abuse  of  the  original  trust  is  to  be  decided  upon  the 
law  of  the  State  wherein  it  is  alleged  to  have  existed.* 

>  Pcnsenneau  v.  Pensenneau,  22  Mo.         *  Pensenncatt  v.  Pensenneau,  22  Mo. 
27;  United  States  v.  State  Bank,  0      27. 
Otto,  80. 


MARITIME    OASES.  301 


CHAPTEK  XXYIII. 

ADMIRALTY   AND    COMMON   LAW   JURISDICTION   IN   MARITIME   0ASE8» 

I.  Admiralty  Juiiisdiction. 

11.  ^Maritime  Liens. 

III.  Maritime  Torts. 

IV.  Common  Law  Jurisdiction  of  Maritime  Cases. 

I.    Admiralty  Jurisdiction. 

The  United  States  district  courts  have  jurisdiction  in  all  cases^ 
civil  and  criminal,  of  a  maritime  character.  Or,  in  the  language 
of  the  constitution,  "  all  eases  of  admiralty  and  maritime  juris- 
diction." This  jurisdiction  depends  in  most  cases  upon  the 
locality  or  place  where  the  cases  arise,  and  not  upon  the  character 
of  the  cases  involved.*  It  is  sufficient  to  confer  jurisdiction  if 
they  arise  upon  the  pnblic  navigable  waters;  ^  and  if  such  be  the 
locality,  then  it  is  no  objection  to  this  admiralty  jurisdiction, 
that  the  place  is  within  the  body  of  an  organized  State  or  county.* 

The  United  States  district  courts  have  exclusive  jurisdiction  of 
all  maritime  cases  purely  in  admiralty  where  the  proceeding  is 
in  rem^,  or  what  is  termed  admiralty  proceedings,  as  contradis- 
tinguished from  proceedings  in  personam  against  the  owner  or 
persons  in  control  of  the  thing  that  is  derelict,  instead  of  against 
the  thing  itself.  ^ 

The  best  guides  as  to  the  extent  of  such  admiralty  jurisdiction 
so  vested  in  the  Federal  courts  are,  in  the  language  of  Justice 

'  The  Belfast,  7  Wall.  624,  637 ;  The  roft,  44  N.  Y.  (5  Hand,)  415 ;  Bird  v. 

Plymouth,  3  Wall.  20;  Desty's  Fed-  The  Steamboat  Josephine,  39  K  Y. 

eral  Procedure,  §563,  p.  22;  1  Conk-  19;    De  Lovio  v.  Boit,  2  Gall.  474; 

ling's  U.  S.  Admiralty,  1,  ei  seg'.  Dunlap's  Ad.    Pr.  *43;   The  Moses 

2  The  Genesee  Chief «.  Fitzhugh.  12  Taylor,   4  Wall.    411;   The  Hiue  v. 

How.  443.  Trevor,  4  Wall.  555 ;  see  Desty's  Fed- 

2  Waring  v.  Clarke,  5  How.  441.  eral  Procedure,  §  563,  p.  22;  1  Conk- 

•»  The  Belfast,  7  Wall.  624, 636 ;  War-  ling's  U.  8.  Admiralty,  1,  et  neq. 
ing  ^.Clarke,  5  How.  441 ;  Vose  c.Cock- 


802  MARITIME    CASES. 

CuFFOED,  "  the  Constitution  of  the  United  States,  the  laws  of 
Congress,  and  the  decisions  of  the  Supreme  Court."  *  This 
jurisdiction  is  not  so  restricted  as  to  subjects  cognizable  therein, 
as  was  that  of  the  English  courts  of  admiralty,  at  the  time  of 
the  revolution  and  attainment  of  American  independence,  nor, 
on  the  other  hand,  so  extensive  as  that  of  the  courts  of  the  con- 
tinental governments,  exercising  jurisdiction  according  to  the 
principles  of  the  civil  law.' 

This  judicial  power  of  the  Federal  courts  over  all  cases  of 
maritime  and  admiralty  jurisdiction,  is  conferred  upon  the  Fed- 
eral government  by  the  Constitution  of  the  United  States,  and 
Congress  cannot  enlarge  it.^  But  it  may  be  restricted,  as  is  the 
case  upon  the  western  lakes,  where  it  is  by  act  of  Congress 
restricted  to  steamboats  and  vessels  engaged  in  commerce  and 
navigation  between  ports  and  places  in  different  States  and  terri- 
tories.* 

There  are  to  be  found,  in  Allen  v.  XTewherry,^  indications  of 
a  different  opinion  in  regard  to  the  power  of  Congress  to  enlarge 
such  jurisdiction,  but  as  is  said  (Clifford,  J.,)  in  the  case  of  The 
Belfast,  "they  were  not  necessary  to  that  decision  as  the  contract 
in  that  case  was  for  the  transportation  of  goods  on  one  of  the 
western  lakes,  where  the  jurisdiction  in  admiralty  is  restricted, 
by  an  act  of  Congress,  to  boats  and  other  vessels  *  *  •» 
employed  in  the  business  of  commerce  and  navigation  between 
ports  and  places  in  different  States  and  Territories."  ' 

The  admiralty  jurisdiction  of  the  United  States  was  originally 
held  to  be  limited  to  waters  affected  by  the  ebb  and  flow  of  the 
tide,  as  in  England.'  But  in  the  case  of  the  Genesee  Chief,  the 
Supreme  Court  of  the  Qnited  States  held  that  jurisdiction  in 
admiralty  did  not  depend  in  this  country  upon  the  ebb  and  flow 
of  the  tide,  but  upon  the  navigable  character  of  the  water;  that 
if  navigable,  it  was  public,  and  if  public,  it  comes  within  the 
scope  of  admiralty  jurisdiction  as  conferred  by  Congress.*    Thus 

'  The  Belfast,  7  Wall.  636.  428;  The  Belfast,  7  Wall.  637;  War- 

'Bags  of   Linseed,  1  Black,  103;  ingc.  Clarke,  5  How.  441;  IConkling's 

The  Belfast,  7  Wall.  634,  636.  U.  S.  Admiralty,  13,  et  teq. 

8  The  Belfast,  7  Wall.  624, 641.  «  The  Genesee  Chief  t>.  Fitzhugh,  12 

♦Ibid.  How.  457;  The  Belfast,  7  Wall.  639; 

»  21  How.  245  The  Eagle,  8  Wall.  21 ;  Fretz  t>.  Bull, 

« 7  Wall.  641.  12  How.  468. 
^  The  Thomas  Jefferson,  10  Wheat 


ADMIRALTY    JURISDICTION.  303 

is  the  admiralty  jurisdiction  extended  over  all  tlie  public  navigable 
waters  ot  the  country,  in  all  its  breadth,  excej)t  as  limited  as 
hereinbefore  stated  upon  the  western  lakes.  This  jurisdiction  is 
exclusive  in  the  district  courts  of  the  United  States  when  the 
proceeding  is  in  reni,^  but  where  a  common  law  remedy  in  per- 
sonam is  only  sought,  the  jurisdiction  as  to  the  cause  of  action, 
but  not  as  to  the  proceeding  in  rem,  is  concurrent  in  the  courts 
of  the  States  of  the  proper  locality  and  jurisdictional  character, 
and  also  in  the  circuit  courts  of  the  United  States  of  the  proper 
district,  if  the  character  of  the  parties  as  to  citizenship  and 
amount  in  controversy  are  such  as  to  permit  of  jurisdiction  in 
these  courts.  In  the  language  of  Clifford,  Justice,  in  the  case 
of  The  Belfast,  the  party  "may  proceed  in  rem  in  the  admiralty, 
or  he  may  bring  his  suit  in  personam  in  the  same  jurisdiction, 
or  he  may  elect  not  to  go  into  admiralty  at  all,  and  may  resort  to 
his  common  law  remedy  in  the  State  courts  or  in  the  circuit 
court  of  the  United  States,  if  he  can  make  proper  parties  to  give 
that  court  jurisdiction  of  his  case."  ^  Maritime  jurisdiction  in 
cases  growing  out  of  contracts,  depends  upon  the  nature  of  the 
contract;  in  cases  of  civil  torts,  it  depends  upon  the  locality 
where  the  act  occurs.'  To  confer  admiralty  jurisdiction  of  torts, 
they  must  occur  upon  the  public  navigable  waters  which  are 
within  the  admiralty  and  maritime  jurisdiction.'* 

Contracts,  claims,  and  service  touching  rights  and  duties  in 
relation  to  commerce  and  navigation  on  maritime  waters,  whether 
between  ports  of  different  States  or  of  the  same  State,  as  for 
instance  contracts  of  affreightment  or  for  transportation  of  pas- 
sengers, are  of  admiralty  jurisdiction."  For  a  breach  of  such 
contracts  and  for  the  infliction  of  such  torts,  maritime  liens  arise 
in  favor  of  the  injured  party  enforcible  only  in  the  United  States 
district  court;  but  they  may  be  waived  and  a  remedy  pursued  at 

»  The  Belfast,  7  Wall.  624,  644;  The  Phoebus,  11  Pet.  175;   The  Thomas 

Moses  Taylor,  4  Wall.  411.  Jefferson,  10  Wheat.  428. 

«  7  Wall.  664;    Dougan  v.   Cham-  *  The  Belfast.  7  Wall.  624,  637;  The 

plain  Trans.  Co.,  56  N.  Y.  1 ;  Baird  v.  Commerce,  1  Black,  574. 

Daly,  57  N.  Y.  236;  De  Lovio  v.  Boit,  ^  The  Belfast,  7  Wall.  624,  637;  1 

2  Gall.  398;  The  Lottawana,  21  Wall.  Conkling's  Admiralty,  19,  32;  Steam- 

558.  boat  Orleans  v.  Phoebus,  11  Pet.  184; 

3  The  Belfast,  7  Wall.  624, 637 ;  Rail-  De  Lovio  v.  Boit,  2  Gall.  398 ;  Rail- 
road Co.  V.  Steam  Towboat  Co.,  23  road  Co.  v.  Steam  Towboat  Co.,  23 
How.    215 ;    Steamboat    Orleans    v.  How.  215. 


30-4  MARITIME    CASES. 

common  law  in  personam  against  the  master  or  owners  of  the 
vessel  or  craft  offending.  ^ 

II.    Maritime  Liens. 

The  States  have  no  power  to  create  or  enforce  maritime  liena 
in  rem.  The  jurisdiction  in  that  respect  is  exclusively  in  Con- 
gress and  the  national  courts.^  By  Section  2  of  Article  III.  of  the 
Constitution,  the  judicial  power  of  the  United  States  is  expressly 
extended  "to  all  cases  of  admiralty  and  maritime  jurisdiction,'^ 
and  Section  9  of  the  judiciary  act  of  1789  declares  that  the  dis- 
trict courts  of  the  United  States  "  shall  have  exclusive  original 
cognizance  of  fill  civil  causes  of  admiralty  and  maritime  juris- 
diction," saving  to  suitors  the  common  law  remedy  where  the 
common  law  can  give  it. 

This  exclusiv^e  cognizance  is  exclusive  of  the  State  courts  as 
well  as  of  other  Federal  courts.^  Parties  entitled  to  proceed  as 
for  a  maritime  lien  in  rem  may  do  so  in  the  district  court  of  the 
United  States,  or  if  possessed  of  the  requisite  citizenship  to 
enable  them  to  sue  in  the  United  States  circuit  court,  may  waive 
the  lien  and  proceed  in  the  latter  court  in  personam  against  the 
master  or  owners  of  the  vessel;  but  there  is  no  concurrent  juris- 
diction in  rem  in  the  State  courts.*  In  all  cases  where  the 
maritime  lien  is  sought  to  be  enforced  in  rem  the  jurisdiction  is 
exclusive  in  the  district  courts  of  the  United  States. ^  If  the 
party  elect  to  proceed  in  personam  in  the  circuit  court  of  the 
United  States  instead  of  proceeding  in  rem  in  the  district  court, 

'  Sturgis  c.   Boyer,  34  How.  117;  Octavia,  1  Wheat.  24;  The  Samuel,  1 

Chamberlain  t>.  Ward,  21  How.  548;  Wheat.  9;  Walters  c.  Steamboat  Mol- 

The  Belfast,  7  Wall.  624,  643 ;  The  St.  lie  Dozier,  24  Iowa,  192. 

Lawrence.  1  Black,  522;  The  General  <  The  Belfast,  7  Wall.  624,  643.    la 

Smith,  4  Wheat.  438;  The  Reindeer,  Trevor  x.  The  Steamboat  Ad.  Hine. 

2  Wall.  384;   Manro  v.  Almeida,  10  the  Iowa  supreme    court    sustained 

Wheat,  473.  the  Stale  court  jurisdiction  in  remy 

•The  Belfast,  7  Wall.  624;  Walters  but  the  pleadings  did  not  show  the 

••  Steamboat  MoUie  Dozier,  24  Iowa,  case  to  be  one  of  maritime  character. 

192.    See,  also,  Desly's  Shipping  &  17  Iowa,  349;   Vose  v.  Cockroft,  44 

Admiralty,  §  68,  et  seq.  N.  Y.  (5  Hand.)  415. 

»  The  Belfast,  7  Wall.  624,  638 ;  New  »  People's  Ferry  Company  v.  Beers, 

Jersey  Steam  Nav.  Co.  v.  Merchants'  20  How.  393,  402;  The  Belfast,  7  Wall. 

Bank.  6  How.  344,  390;  United  States  624,  646;  The  Moses  Taylor,  4  Wall. 

«.  The  Betsey,  4  Cr.  442 ;  United  States  411;  Weston  v.  Morse,  40  Wis.  455; 

V,  La  Vengeance,  3  Dall.  297;   The  The  Lottawanna,  21  Wall.  558. 


MARITIME    TORTS.  305 

as  we  have  above  seen  he  may  do,  when  qualified  in  point  of 
citizenship,  the  proceedings  are  the  same  in  such  cause  as  in 
other  cases  in  said  court  at  common  law  or  suits  not  maritime; 
and  if  attachments  are  allowable  under  the  State  law,  they  may 
be  resorted  to  in  such  suits  as  auxiliary  to  the  proceedings  in 
'personam^  as  in  other  cases.  ^ 

Maritime  liens  do  not  arise  out  of  contracts  to  furnish  mate- 
rials and  supplies  for  vessels  in  the  home  port;  therefore,  the 
States  may,  by  law,  create  such  liens  as  they  deem  proper  in  this 
class  of  cases,  and  may  enforce  the  same  in  the  State  courts  by 
all  reasonable  rules  of  law  which  do  not  amount  to  a  regulation 
of  commerce.  2  Contracts  to  build  ships  or  for  materials  for 
ship  building  do  not  create  maritime  liens;  they  are  not  mari- 
time contracts.* 

III.     Maritime  Toets. 

Maritime  torts  can  only  occur  upon  the  water,  and  then  only 
where  such  waters  are  under  maritime  jurisdiction.  If  an  injury 
occur  upon  the  land,  it  is  not  a  maritime  injury,  or  tort,  although 
the  immediate  cause  thereof,  and  proceeding  from  a  maritime 
vessel  lying  in  maritime  waters,  or  from  the  negligence  of  the 
master  or  serv^ants  in  charge  of  such  vessel.  To  render  it  a 
maritime  tort,  both  the  injury  and  the  wrong  act  that  causes  it 
must  take  place  upon  the  water.*  In  such  case  the  jurisdiction 
of  the  tort  in  rem  is  exclusively  in  the  United  States  court;  but 
if  the  injury  occur  upon  the  land,  then  the  jurisdiction  is  in  the 
State  courts,  although  the  cause  of  the  injury  proceed  from  on 
board  a  maritime  craft,  in  maritime  waters. ^  The  case  of  the 
Plymouth,  here  cited,  occurred  in  this  wise:  The  steam  propeller 
Falcon,  a  vessel  navigating  the  great  lakes,  was  anchored  off  the 
wliarf  in  the  Chicago  river,  in  "  navigable  water,"  and  while  so 
anchored  took  fire  from  negligence  of  some  of  those  having  her 
in  charge,  which  fire  communicated  itself  to  erections  on  shore 

'  The  Belfast,  7  Wall.  624,  643,  645 ;  &  R  58 ;  The  Jerusalem,  2  Gall.  191 ; 

Sturgis  '0.  Boyer,  24  How.  110,  117;  Francis  «.  The  Harrison,  1  Sawyer, 

Chamberlain  v.  Ward,  21  How.  548,  355. 

553.  »  Roach  <d.  Chapman,  22  How.  129. 

2  The  Belfast,  7  Wall.  624,  645,  646 ;  «  The  Plymouth,  3  Wall.  20 ;  1  Couk- 

Roach  '0.  Chapman,  22  How.  129 ;  The  ling's  U.  S.  Admiralty,  32,  ci  i^, 

Edith,  4  Otto,  518;  Morrison  ®.  Burns,  *  Ibid. 
40  Mo.  491 ;  Williams  -b.  Tearney,  8  S. 
20 


306  MARITIME    CASES. 

and  destroyed  the  same  and  tlieir  contents.  Tlie  Falcon  was  also 
destroyed.  Tlie  owners  ol  the  shore  pro]jerty  thus  burned  pro- 
ceeded in  admiralty,  as  for  a  marine  tort,  against  the  owners  of 
the  Falcon  and  attached  the  Plymouth,  a  vessel  belonging  to  the 
defendants.  The  United  States  district  court  held  that  the  case 
was  not  one  coming  within  the  admiralty  jurisdiction,  and  dis- 
missed it  accordingly.  On  appeal,  the  supreme  court  of  the 
United  States  affirmed  the  decision.  Nelson,  J.,  delivering  the 
opinion  of  the  court,  said:  "  The  cause  of  action  not  being  com- 
plete on  navigable  waters,  affords  no  ground  for  the  exercise  of 
the  admiralty  jurisdiction."^ 

Vessels  on  the  Mississippi  river,  plying  from  point  to  point  of 
opposite  shores  in  two  different  States,  are  within  the  admiralty 
jurisdiction,  notwithstanding  their  principal  business  is  that  of 
ferrying  between  opposite  sides  of  said  river.* 

IV.    Common  Law  Jueisdiction  of  Marttime  Cases. 

State  courts  have  jurisdiction  of  personal  actions  growing  out 
of  maritime  contracts  by  proceeding  at  common  law,  not  for  a 
lien,  but  for  a  personal  recovery  for  breach  of  contract.  Thus 
an  action  at  law  lies  on  a  bill  of  lading  for  carriage  of  goods  by 
a  carrier  upon  maritime  waters,  from  a  port  in  one  State  to  a 
port  of  another  State,  to  recover  damages  for  breach  of  the  con- 
tract of  carriage.  3 

They  also  have  jurisdiction  at  common  law  against  the  person 
for  personal  injuries  and  other  torts,  if  there  is  a  common  law 
remedy,  and  this  whether  the  right  of  action  be  one  at  common 
law  or  be  given  by  statute.* 

The  term  "  suits  at  common  law,"  in  the  Federal  Constitution, 
is  used  in  contradistinction  to  equity  proceedings  and  proceed- 
ings in  admiralty,  in  which  latter  a  mixture  of  public  law,  mari- 
time law  and  equity  are  sometimes  found  in  the  same  suit.  The 
term  does  not  contemplate  such  proceedings  only  as  in  form  and 

•  3  Wall.  36.  hugh,  12  How.  443 ;  The  Moses  Tay- 

*  The  Gate  City,  5  Biss.  200.  lor,  4  Wall.  441 ;  The  Belfast,  7  Wall. 
2  Home  Ins.  Co.  v.  Northwestern      634. 

Packet  Co.,  32  Iowa,  223;  New  Jersey         *  Dougan  v.  Champlain  Trans.  Co., 

Steam  Nav.  Co.  v.  Merchants'  Bank,  56  N.  Y.  1,  6 ;  Swarthout  v.  New  Jer- 

6  How.  344;   Waring  v.   Clarke,  5  sey  Steam  Nav.  Co.,  48  N.  Y.  209. 
How.  441 ;  The  Genesee  Chief  v.  Fitz- 


COMMON    LAW    JURISDICTION.  307 

practice  conform  strictly  to  those  of  the  old  common  law.  In 
other  words,  proceedings  at  common  law,  in  their  true  sense, 
*'  embrace  all  suits  which  are  not  of  equity  and  admiralty  juris- 
diction, whatever  may  be  the  peculiar  form  which  they  may 
assume  to  settle  legal  rights."  ^ 

To  enable  the  common  law  courts  of  a  State  to  exercise  com- 
mon law  jurisdiction  in  admiralty  cases,  where  a  common  law 
remedy  exists,  it  is  not  necessary  that  the  right  of  action  should 
be  one  known  to  the  common  law;  it  is  sufficient,  though  the 
right  be  given  by  statute,  if  it  can  be  enforced  by  a  common  law 
proceedings.  2 

Where  a  party  having  a  right  of  action  in  admiralty  is  willing 
to  forego  his  right  of  proceeding  in  rem,  and  to  proceed  at  com- 
mon law  for  his  remedy  in  a  personal  action  against  the  parties 
liable  thereto,  he  has  his  election  so  to  do,  and  may,  if  he  elects 
to  proceed  at  common  law,  have  his  action  in  the  j)roper  State 
court; 3  or,  if  the  parties  and  amount  in  controversy  be  such  as 
to  bring  the  case  within  the  common  law  jurisdiction  of  the 
United  States  circuit  court,  may  bring  his  action  in  the  latter 
court,  at  his  election.'*  Sucli  action  lies  thus  at  common  law,  if 
the  circumstances,  as  before  stated,  be  such  as  to  warrant  it,  as 
well  if  the  right  of  action  be  one  at  common  law,  or  one  given 
by  statute.  5  The  case  here  cited,  of  Steamhoat  Co.  v.  Chase, 
was  an  action  for  the  death  of  a  person  while  crossing  a  high- 
way, given  by  a  statute  of  Rhode  Island,  in  cases  where  the  death 
is  caused  by  negligence  of  a  common  carrier.  The  deceased  was 
crossing  N^arragansett  Bay  on  a  public  highway,  and  was  run 
over  and  killed  by  a  steamer  there  plying  as  a  common  carrier. 
The  supreme  court  of  the  United  States  held  that  the  common 
law  9,ction  lay  therefor  in  personam  against  the  owner  of  the 
vessel,  under  the  statute.  Though  by  the  civil  law  it  is  other- 
wise, yet,  under  the  maritime  law  of  the  United  States,  neither  a 

'  Parsons  n.  Bedford,  3  Pet.  433,  446,  How.  553 ;  Swarthout  ».  New  Jersey 

447.  Steam  Nav.  Co.,  48  N.  Y.  209. 

-  Dougan  v.  Champlain  lii-ans.  Co.,         *  Steamboat  Co.  ■».  Chase,  16  Wall. 

C  Lans.  430;  8.  C,  56  N.  Y.  1.  522;  Sturgis  ».  Boyer,  24  How.  117; 

3 1  U.  S.  Stat,  at  Large,  76 ;  The  Bel-  Chamberlain  -o.  Ward,  21  How.  553. 
fast,  7  Wall.  666;  Baird  «.  Daly,  57  N.Y.         »  16  Wall.  522 ;  Baird  t.  Daly,  57  N. 

236, 247 ;  Dougan  «.  Champlain  Trans.  Y.  236,  247 ;  Swarthout  v.  New  Jersey 

Co.,  56  N.  Y.  1 ;  Sturgis  v.  Boyer,  24  Steam  Nav.  Co.,  48  N.  Y.  209. 
How.  117 ;    Chamberlain  xi.  Ward,  21 


308  MARITIME    CASES. 

contract  to  luild  a  ship,  or  to  furnish  materials  for  that  purpose, 
is  a  maritime  contract;  and  causes  of  action  resting  on  such 
contracts  do  not  come  within  the  jurisdiction  of  the  United  States 
court,  under  that  clause  of  the  Constitution  which  declares,  in 
substance,  that  the  judicial  power  of  the  United  States  shall  ex- 
tend to  all  cases  of  admiralty  and  maritime  jurisdiction. *  Such 
contracts  to  build,  and  to  furnish  material  with  which  to  build 
ships,  are  within  the  jurisdiction  of  the  State  courts,  and  the  pur- 
view and  force  of  State  laws  giving  liens  for  security  of  payment 
for  labor  and  materials  thus  furnished  and  bestowed,  as  also 
within  the  rules  and  regulations  provided  by  such  State  laws  for 
their  enforcement,  which  do  not  amount  to  a  regulation  of 
commerce.' 

» Edwards  v.  Elliott,  21  Wall.  632,  « Edwards  v.  Elliott,  21  Wall.  532, 
656,557;  Roach  c.  Chapman,  22  How.  655,  556,  657;  The  Belfast,  7  Wall 
129.  645 ;  Sheppard  «.  Steele,  43  N.  T.  55. 


IlfTEE-STATE    COMMERCE.  309 


CHAPTEK  XXIX. 

INTEK-STATE    COMMERCE. 

I.    The  Teem  Commerce.     Power  to  Regulate  Inter-State  Com- 
merce. 
II.    Uktil  Controlled  by  Congress  it  is  Free. 

III.  State  Regulation  op  Vessels  Engaged  in  Commerce.     Tax  op 

Commanders,  and  op  Arrivals  and  Intek-State  Passengers  by 
Land  and  by  Water. 

IV.  State  Property  Tax  op  Vessels  Engaged  in  Inter-State  Com- 

merce. 
V.    Pilotage. 

VI.    Warehousing  and  Elevating. 
VI  I.    State  Control  op  Bayous  and  Sloughs  op  Rivers. 

I.     The  Tekm  Commeece.      Power  to  Eegulate  Inter-Statb 

Commerce. 

Commerce  is  a  term  of  comprehensive  import.  It  includes  in- 
tercourse, for  the  purposes  of  trade,  in  any  and  all  forms.  The 
power  to  regulate,  say  the  supreme  court  of  the  United  States, 
"  embraces  all  the  instruments  by  which  such  commerce  may  be 
conducted."!  Where  the  subjects  are  local  in  their  nature,  it  has 
been  held  that  the  States  may  provide  regulations  until  Congress 
acts  in  reference  thereto ;2  but  where  the  subject  is  of  a  national 
character,  or  such  as  to  admit  of  uniformity  of  regulation,  the 
the  power  is  in  Congress,  exclusive  of  all  State  authority.  ^ 

Under  the  Control  of  Congress.  The  Constitution  of  the 
United  States  places  commerce  between  the  several  States  exclu- 
sively within  the  control  and  regulation  of  Congress.     Congress, 

'  Welton  V.  Missouri,  1  Otto,  275.  wanna,  21  Wall.  />t^8,  581 ;  Er  parte 

And  see,  to  same  eflfect.  The  Pensa-  McNiel,  13  Wall.  23(?,  240;  W'^Uson 

cola  Telegraph  Co.  -o.  The  Western  v.  Blackbird  Creek  Marsli  Co- .  3  Pet. 

Union  Telegraph  Co.,  6  Otto,  1.  245. 

•^Welton  V.  Missouri,  1  Otto,  275;  ^  Helton  v.  Misiouii,  \  Otto,  275, 

Sherlock  v.  Ailing,  3  Otto,  99;  U.  S.  280. 
«.  Bevans,  3  Wheat.  337 ;  The  Lotta- 


310  INTER-STATE    COMMERCE. 

alone,  has  power  to  regulate  commerce  among  the  States,  i  Any 
impediment  imposed  by  a  State  upon  commerce  with  otlier  States 
is  unconstitutional  and  void.  Thus,  a  State  law  levying  a  stamp 
duty  on  exports  is  unconstitutional  as  a  tax  upon  exports,  and  is 
of  no  force  whatever.*  This  power  to  regulate  commerce  con- 
ferred upon  Congress  by  the  Constitution,  is  not  confined  to  the 
means  of  carrying  on  the  same  which  were  known  and  used  at 
the  time  the  Constitution  was  adopted.  This  power  was  not  con- 
ferred for  a  particular  time,  but  for  all  times.  It  is  commensu- 
rate with  the  increased  subjects  of  commerce  as  the  same  increase 
from  time  to  time,  and  extends  in  like  manner  to  all  new  appli- 
ances and  means  used  in  carrying  on  the  same.'  In  the  language 
of  the  United  States  supreme  court,  Waite,  C.  J.,  such  powers 
"  keep  pace  with  the  progress  of  the  country,  and  adapt  them- 
selves to  the  new  developments  of  time  and  circumstances. 
They  extend  from  the  horse,  with  its  rider,  to  the  stage  coach; 
from  the  sailing  vessel  to  the  steamboat;  from  the  coacli  and 
steamboat  to  the  railroad;  and  from  the  railroad  to  the  tele- 
graph, as  these  new  agencies  are  successively  brought  into  use  to 
meet  the  demands  of  increasing  population  and  wealth.  They 
were  intended  for  the  government  of  the  business  to  which 
they  relate,  at  all  times,  and  under  all  circumstances,"'*  It  is 
thus  held  that  not  only  the  ordinary  means  of  inter-State  trana- 
portatlon  and  traffic^  but  also  the  means  of  inter-State  commvr- 
nication,  as  the  electric  telegraph,  are  within  the  power  thus  be- 
stowed upon  Congress  by  the  Constitution,  and  that  no  State  can 
confer  on  any  one  a  monopoly  of  the  telegraphic  business  within 

'Sec.  8,   Article    I.   Cous.  U.  S.;  577;  Foster??.  Master,  etc.,  of  Port  of 

Brown  v.  Maryland,  12  Wheat.  419,  New  Orleans,  4  Otto,  246. 

425,  444;  Welton  v.  Missouri,  1  Otto,  «  Almy  v.  California,  24  How.  169. 

275 ;   Corfleld  v.  Coryell,  4  Wash.  C.  '  Pensacola  Telegraph  Co.  v.  The 

C.  371 ;  Almy  v.  California,  24  How.  Western  Union  Telegraph  Company, 

169;  Gibbons  v.  Ogden,  9  Wheat.  1;  6  Otto,  1. 

Pennsylvania  p.  Wheeling  Bridge  Co.,  ^  Pensacola  Telegraph   Co.  «.  The 

18  How.  421 ;  Passenger  Cases,  7  How.  Western  Union  Telegraph  Co.,  6  Otto, 

283;   Council  Bluffs  v.  Kansas  City,  1.    A  like  principle  is  asserted  in  the 

etc.,R.R. Co.,  45  Iowa.  338,349;  State  case  of  the  Genesee  Chief,  12  How. 

Freight  Tax  Case,  15  Wall.  232;  Rail-  443,  in  regard  to  admiralty  jurisdic- 

road  Co.  t).  Husen,  5  Otto,  465 ;  Inmau  tion,  and  is  sustained  in  all  subse- 

Steamship  Co.  «.  Tinker,  4  Otto,  238;  quent  rulings  on  the  subject;    that 

State  Tonnage  Tax  Cases,  12  Wall,  having  now  become  a  leading  case. 
204 ;  Cannon  v.  New  Orleans,  20  Wall. 


UNTIL  CONTROLLED  BY  CONGRESS,  IT  IS  FREE.  311 

any  part  of  its  territorial  jurisdiction.^  It  is  so  regarded  as  an 
instrument  of  commercial  intercourse,  upon  the  same  principle 
as  is  the  postal  service  and  intercourse  of  the  United  States 
regarded  and  treated  in  law  as  sucli.^ 

II.     Until  Controlled  by  Congress,  it  is  Free. 

'No  State  may  in  any  manner  fetter  or  obstruct  mterSta.te  com- 
merce, or  discriminate  injuriously  against  the  products  or  trade 
of  other  States,  or  against  the  rights  of  their  citizens,  although 
Congress  has  not  exercised  its  privilege  of  regulating  such  inter- 
course or  trade.  Until  Congress  exercises  its  authority  upon  the 
subject,  inter-State  commerce  is  free. 

In  the  language  of  the  United  States  supreme  court, "  its  inac- 
tion on  the  subject,  when  considered  with  respect  to  foreign  com- 
merce, is  equivalent  to  a  declaration  that  inter-State  commerce 
shall  be  free  and  untrammeled."^ 

In  the  case  just  cited,  it  was  held  that  a  statute  of  Missouri  is 
void  which  discriminates  between  the  sale  in  that  State  of  goods 
or  property  not  the  product  of  the  State,  and  the  sale  of  goods 
and  property  the  product  of  the  State,  by  requiring  a  license  for 
sale  of  the  former  and  not  for  the  latter,  and  making  the  sale  of 
such  foreign  products  without  a  license  a  penal  act,  subjecting 
the  party  to  a  penalty. ^ 

The  case  of  Railroad  Company  v.  Ilusen^  was  one  brought 
by  Husen  against  the  Hannibal  &  St.  Joe  Railroad  Company 
in  a  State  court  of  Missouri,  for  alleged  damages  caused  by  a 
violation  by  said  company  of  an  act  of  the  legislature  of  that 
State  in  relation  to  the  introduction  of  Mexican,  Texas  or  Indian 
cattle  into  said  State.  The  first  section  thereof  reads  as  follows: 
"  No  Texas,  Mexican,  or  Indian  cattle  shall  be  driven  or  o'ther- 
wise  conveyed  into,  or  remain  in,  any  county  in  this  State  be^ 
tween  the  first  day  of  March  and  the  first  day  of  November  in 

1  Supra.  Wheat.  425,  444 ;  Van  Buren  v.  Down- 

2  Ibid.  ing,  41  Wis.  122.    The  court  follow- 

3  Welton  v.  Missouri,  1  Otto,  275,  ing  in  tliis  last  case  the  ruling  in  the 
283;  Van  Buren  ■».  Downing,  41  Wis.  Welton  v.  Missouri,  and  disavowing 
122.  accordingly  the  prior  ruling  in  Wis- 

*  Welton  V.  Missouri,  1  Otto,  275.      cousin,  in  Morrill  v.  The  State,  38 
So,  likewise,  of  a  similar  Maryland       Wis.  428. 
statute.      Brown    v.     Maryland,    12         ^5  Otto,  4G5. 


312  INTER-STATE    COMMERCE. 

each  year  by  any  person  or  persons  wliatsoever;  provided,  that 
nothing  in  this  act  shall  apply  to  any  cattle  which  have  been 
kept  the  entire  previous  winter  in  this  State;  provided,  further, 
that  when  such  cattle  shall  come  across  the  line  of  this  State, 
loaded  upon  a  railroad  car  or  steamboat,  and  shall  pass  through 
this  State  without  being  unloaded,  such  shall  not  be  construed  as 
prohibited  by  this  act;  but  the  railroad  company  or  owner  of  a 
steamboat  performing  such  transportation  shall  be  responsible 
for  all  damages  which  may  result  from  the  disease  called  the 
Spanish  or  Texas  fever,  should  the  same  occur  along  the  line  of 
such  transportation;  and  the  existence  of  such  disease  along  such 
route  shall  be  prima  facie  evidence  that  such  disease  has  l)een 
communicated  by  such  transportation."  Another  section  thereof 
is:  "If  any  person  or  persons  shall  bring  into  this  State  any 
Texas,  Mexican  or  Indian  cattle,  in  violation  of  the  first  section 
of  this  act,  he  or  they  shall  be  liable,  in  all  cases,  for  all  damages 
sustained  on  account  of  disease  communicated  by  said  cattle." 
The  defense  was  placed  mainly  upon  the  unconstitutionality  of 
the  law.  The  highest  State  court  held  it  to  be  constitutional, 
and  the  case  having  been  taken  on  error  to  the  United  States 
supreme  court,  the  act  of  the  assembly  was  there  held  to  be 
unconstitutional,  as  violating  that  part  of  the  United  States  con- 
stitution which  vests  in  Congress  the  exclusive  power  to  regulate 
commerce  with  foreign  nations  and  among  the  several  States,  and 
with  the  Indian  tribes.  It  was  held  to  be  "a  plain  regulation  of 
iWtjr-State  commerce,  a  regulation  extending  to  prohibition." 
In  reference  to  the  attempt  to  sustain  the  validity  of  the  State 
statute  as  matter  of  police,  the  United  States  supreme  court  con- 
cede the  power  in  the  local  government  to  make  quarantine 
and  health  regulations,  and  to  exclude  from  introduction  into  its 
limits,  convicts,  paupers,  idiots,  lunatics  and  other  persons  likely 
to  become  a  public  charge,  and  persons  afflicted  with  contagious 
and  infectious  diseases,  as  a  right  founded  in  the  law  of  self  de- 
fense, and  in  like  principles  the  right  to  exclude  property  dan- 
gerous to  the  property  of  the  inhabitants  of  the  State;  but  that 
whatever  such  power  of  police  might  be,  it  could  not  be  exercised 
by  a  State  over  subjects  confided  exclusively  to  Congress  by  the 
Federal  constitution.  That  whenever  a  statute  of  a  State  invades 
the  domain  of  legislation  which  belongs  exclusively  to  Congress,  it 
is  void,  no  matter  under  what  class  of  powers  it  may  fall,  or  how 


UNTIL  CONTROLLED  BY  CONGRESS,  IT  IS  FREE.  313 

closely  allied  it  may  be  to  powers  conceded  to  belong  to  the 
States.  1  The  ruling  of  the  supreme  court  of  Illinois  in  favor 
of  the  constitutionality  of  a  similar  statute  was  referred  to,  but 
not  regarded  with  approbation  by  the  United  States  supreme 
court. 

State  Discrimination  Between  Residents  and  Non-Residents. 
So,  an  act  of  a  State  legislature  is  void  which  discriminates 
against  non-residents  and  in  favor  of  residents  of  the  State  as  to 
the  terms  upon  which  they  may  engage  in  buying  and  selling 
articles  of  commerce  and  merchandise  in  such  State.  Such  dis- 
criminating legislation  violates  Section  2  of  Article  lY.  of  the 
Constitution  of  the  United  States,  which  provides  that  citizens 
of  each  State  shall  be  entitled  to  all  the  privileges  and  immuni- 
ties of  citizens  of  the  several  States.  ^ 

And  where  such  statute  imposes  a  penalty  for  its  violation  re- 
coverable by  indictment  and  trial  in  the  State  court,  error  lies 
from  such  conviction  to  the  supreme  court  of  the  United  States, 
if  on  the  trial  the  validity  of  such  statute  is  drawn  in  question 
under  the  Federal  constitution  in  the  highest  State,  in  which  a 
decision  in  the  case  could  be  had,  and  the  decision  of  such  high- 
est State  court  is  in  favor  of  the  validity  of  the  statute. ^ 

A  distinction  is  made,  as  we  have  before  seen,  in  regard  to  the 
rights  arising  under  said  Section  2  of  Article  lY.  of  the  Consti- 
tution, in  this:  That  while  legal  entities,  as  corporations,  for 
instance,  are  held  to  be  so  far  citizens  as  to  entitle  them  to  the 
benefit  of  some  other  provisions  thereof,  that  the  section  above 
referred  to  applies  to  natural  persons  only.^ 

Inhibition  of  State  Interference.  This  inhibition  to  State 
interference  extends  to  and  protects  such  property  as  is  trans- 
ported into  a  State  as  articles  of  commerce  from  all  hostile  or 
interfering  legislation  until  it  has  mingled  with  and  has  become 
a  part  of  the  general  property  of  the  country,  and  as  such  is  sub- 
jected alike  to  similar  protection  and  to  no  greater  burdens."* 

1  Railroad  Co. ».  Husen,  5  Otto,  465,  Husen,  6  Cent.  Law  Journal,  173,  and 

471,  473.      See,   also,   Henderson    v.  note  criticising  the  opinion. 
Mayor  of  New  York,   2  Otto,  259;  ^ -^ard  v.  Maryland,  12  Wall.  418, 

Gibbons  v.  Ogden,  9  Wheat.  1;  Chy  429,  432. 

Lung  B.  Freeman,  2  Otto,  275;  Wei-         ^Ibid.    1  U.  S.  Stat,  at  Large,  85. 
ton  V.  Missouri,  1  Otto,  275;  Passen-         ■*Paul  v.  Virginia,  8  Wall.  168. 
ger  Cases,  7  How.  283.    See,  also,  a         =  Welton  v.  Missouri,  1  Otto,  275, 

report  of  the  case  of  Railroad  Co.  v.  281 ;  Cook  'o.  Pennsylvania,  Chicago 


314  IXTER-STATE    COMMERCE. 

State  Police.  But  tliis  power  conferred  on  Congress  is  not 
intended  to  prevent  the  States  from  legislating  on  all  subjects 
relating  to  the  health,  life  and  safety  of  their  citizens,  although 
such  legislation  might  indirectly  affect  the  commerce  of  the 
country.* 

III.  State  Eegulation  of  Vessels  Engaged  in  Commerce. 
Tax  of  Commanders,  and  of  Arrivals  —  and  of  Inter- 
State  Passengers,  by  Land  and  by  Water. 

State  laws  assuming  to  regulate  the  movements  of  vessels  nav- 
igating the  waters  of  the  State,  when  such  vessels  are  licensed 
and  enrolled  under  the  laws  of  the  United  States  are  unconsti- 
tutional and  void,  except  such  laws  as  are  of  a  police  character. 
Hence  a  State  law  requiring  of  the  owners  or  masters  of  such  ves- 
sels the  filing  of  a  statement  in  writing  in  a  designated  State 
office,  setting  forth  the  name  of  the  vessel,  the  name  of  the  owner 
or  owners,  his  or  their  place  of  residence,  and  interest  of  each 
owner,  before  leaving  a  port  of  the  State,  and  under  a  specified 
penalty,  is  void,  as  conflicting  with  the  constitution  and  also  with 
the  acts  of  Congress  regulating  commerce  and  the  coasting 
trade.  8 

State  Police.  But  the  power  of  the  States  to  make  inspection, 
quaratine,  and  other  necessary  local  regulations  of  a  police 
nature  not  affecting  commerce  or  the  instrument  of  commerce, 
exists  as  matter  of  domestic  police. ^ 

State  laws  imposing  a  payment  of  a  sum  of  money  upon  vessels 
engaged  in  commerce,  and  plying  between  the  ports  of  such  State 
and  those  of  another  State,  for  each  arrival,  and  for  the  benefit 

Legal  News,  Vol.  XI.  p.  65,  U.  S.  S.  Foster  v.  Davenport,  22   How.  244. 

Ct.  October  Term,  1878.    By  this  case  So,  likewise,  a  State  law  levying  a 

a  State  tax  on  auction  sales  of  goods  stamp  duty  upon  bullion,  money,  or 

from  another  State  while  yet  in  the  property  carried  out  of  the  State,  is 

original  packages,  was  held  equally  void  as  violating  the  constitution  and 

within  the  prohibitiou.  conflicting  with   the  enactments  of 

'  Sherlock  t).  Ailing,  3  Otto,  99, 103;  Congress,  in  relation  to  commerce. 

License  Cases,  5  How.  504;  Bode  v.  the  coasting  trade,   and   intercourse 

State,  7  Gill.  326 ;  Kettering  v.  Jack-  among  the  States,  and  as  a  t&x  upon 

sonville,  50  111.  39 ;  Thomason  v.  State,  exports.    Almy  t?.  California,  24  How. 

15    Ind.  449;   License  Tax  Cases,  5  169. 

Wall.  462;  Passenger  Cases.  7  How.  *  Steamship  Company  t>.  The  Port 

283.  Wardens,  6  Wall.  31. 

»  Sinnot  v.  Davenport,  22  How.  227 ; 


STATE  eegulatio:n-  of  vessels.  315 

of  port  officers  without  service  performed  or  offered  therefor,  is 
Tinconstitntional  and  void,  as  amounting  to  an  interference  with 
commerce  between  the  States. i  The  case  is  not  like  one  arising 
under  the  law  of  pilotage,  by  which  pilots  are  compelled  to  go 
out  and  offer  service  to  incoming  vessels,  and  if  service  be  refused 
from  the  pilot  first  offering  it,  entitling  such  pilot  to  half  pilot- 
age. In  the  latter  case,  the  law  compels  the  offer  of  service,  and 
if  declined,  gives  to  the  party  tendering  it  half  pilotage  as  com- 
pensation for  the  labor  and  risk  of  making  the  offer,  and  the 
same  law  implies  a  conti-act  on  the  part  of  the  shipowner  or 
master  to  pay  it.^  But  the  imposing  of  a  sum  certain  upon 
vessels  for  each  arrival  without  any  consideration  in  return  is  a 
tax,  and  to  the  extent  imposed,  operated  directly  in  restraint  of 
commerce.  In  the  language  of  the  United  States  Supreme  Court 
in  the  Steamship  Company  v.  Port  Wardetis,^  it  "  works  the  very 
mischief  against  which  the  constitution  intended  to  protect  com- 
merce among  the  States." 

State  Capitation  Tax  on  Inter- State  Travelers.  So,  a  State  law 
is  unconstitutional  and  void  which  imposes  a  capitation  tax  upon 
a  person  leaving  the  State  by  railroad,  stage  coach  or  other  vehicle 
engaged  or  employed  in  the  business  of  transporting  passengers 
for  hire,  collectable  of  the  proprietors  or  owners  and  corporations 
so  engaged  in  transporting  passengers.*  Such  a  law  strikes  at 
the  right  of  the  people  to  have  free  ingress  or  egress  to  and 
from  and  through  all  the  States  and  Territories  composing  our 
common  government,  and  also  at  the  right  of  that  government 
to  require  and  enforce  their  presence  into  and  out  of  such  States 
and  Territories,  and  to  cause  them  to  pass  through  the  same  on 
such  occasions  as  national  exigencies  may  require  within  the  con- 
stitutional powers  of  such  government.  ^ 

State  Tax  on  Commanders  of  Vessels  or  Passengers.  And 
equally  obnoxious  to  the  constitution  are  State  laws  assuming  to 
enforce  a  tax  for  any  purpose  whatever  upon  commanders  of 
vessels,  foreign  or  inter-State,  or  on  passengers  thereon,  coming 

J  Steamship  Company  v.  The  Port  ens  of   Philadelphia,  12  How.  299. 

Wardens,  6  Wall.  31.  »  Supra. 

2  Steamship  Company  v.  Port  War-  *  Graudall  v.  Nevada,  6  Wall.  35 ; 

dens,  6  Wall.  31 ;  Exi  parte  McNiel,  13  Passenger  Cases,  7  How.  283. 

Wall.  236 ;  Steamship  Company  v.  '  Crandall  v.  Nevada,  6  Wall.  35, 48. 
Joliffe,  2  Wall.  450;  Cooley  v.  Ward- 


316  INTER-STATE   COMMERCE. 

into  ports  of  the  State.  Such  laws  are  in  direct  violation  of  the 
provisions  of  the  United  States  constitution,  which  confers  upon 
the  national  Congress  the  exclusive  power  of  regulating  foreign 
commerce  and  commerce  between  the  States,  and  which  prohibits 
the  States  from  imposing  import  duties  and  exports.  *  The  cases 
of  Smith  V.  Turner  and  NorHa  v.  City  of  Boston^  kno^vn  as  the 
Passenger  Cases,  here  cited,  arose  in  this  way:  Kew  York 
passed  a  law  requiring  for  hospital  purposes  the  payment  of  a 
tax  by  the  master  of  every  vessel  from  a  foreign  port,  for  himself 
and  each  cabin  passenger,  one  dollar  and  fifty  cents;  for  each 
steerage  passenger,  mate,  sailor,  or  mariner,  one  dollar.  And 
from  the  master  of  each  coasting  vessel,  for  each  person  on 
board,  twenty-five  cents;  except  coasting  vessels  from  New  Jer- 
sey, Connecticut  and  Rhode  Island,  which  were  required  to  pay 
for  no  more  than  one  voyage  in  each  month.  Said  law  also  pur- 
ported to  empower  the  master  in  all  such  cases  to  collect  such 
sums  from  the  persons  on  whose  account  he  was  thus  assessed. 
Smith,  the  master  of  a  British  ship,  having  landed  passengers 
from  a  foreign  port  in  New  York,  and  refusing  to  pay  such  tax, 
was  sued  by  the  health  officer,  Turner,  for  the  amount  thereof. 
To  the  right  of  recovery  defendant  demurred  on  the  ground  of 
the  unconstitutionality  of  the  statute.  Judgment  was  rendered 
thereon  by  the  highest  State  court  of  New  Y'ork,  for  the  plaintiff, 
after  overruling  the  demurrer.  The  case  having  gone  to  the 
United  States  Supreme  Court,  it  was  there  held,  McLean,  Jus- 
tice, delivering  the  opinion,  that  the  statute  assumed  to  regulate 
foreign  commerce,  and  was  void  as  in  conflict  with  that  clause  of 
the  United  States  constitution  which  confers  upon  the  national 
Congress  the  exclusive  jDOwer  to  regulate  commerce  with  foreign 
nations  and  among  the  several  States.  ^  In  this  connection  the 
learned  court  say :  "  A  tax  or  duty  upon  tonnage,  merchandise, 
or  passengers,  is  a  regulation  of  commerce,  and  cannot  be  laid 
by  a  State  except  under  the  sanction  of  Congress  and  for  the 
purposes  specified  in  the  constitution."  Norris  v.  The  City  of 
Boston,  grew  out  of  similar  legislation  by  the  State  of  Massa- 
chusetts, assuming  not  only  to  levy  and  collect  a  tax  upon 
passengers  arriving  by  ship  from  foreign  ports,  but  also  to  exclude 
from  the  privilege  of  landing  certain  of  such  passengers,  as 

*  Passenger  Cases,  7  How.  423.  « Passenger  Cases,  7  How.  283,  408. 


STATE    PROPERTY    TAX    OF    VESSELS.  317 

lunatics,  idiots  and  other  specified  objectionable  persons.  The 
plaintiff,  ISTorris,  an  inhabitant  of  St.  John,  in  the  British 
dominion,  arrived  in  the  port  of  Boston  with  and  in  command 
of  a  schooner  which  had  foreign  passengers  on  board,  and  the 
tax  being  demanded  on  such  passengers  by  the  Massachusetts 
authorities,  was,  by  the  said  commander,  paid  under  protest,  and 
suit  was  brought  to  recover  back  the  amount  paid,  against  the 
city  of  Boston  in  the  common  pleas  court.  Judgment  was  ren- 
dered for  the  defendant,  which  judgment  was  affirrned  by  the 
Supreme  Court  of  the  State.  The  Supreme  Court  of  the  United 
States  held  the  law  to  be  unconstitutional  for  like  reasons  as  in. 
Smith  V.  Turner,  and  both  cases  were  by  the  Supreme  Court  ol 
the  United  States,  reversed.'^ 

lY.     State  Property  Tax  of  Vessels  Engaged  in  Inter-State 

Commerce. 

State  Taxation  at  the  Home  Port.  Though  commerce  between 
the  States  is  not  a  subject  of  State  taxation,  yet  the  vehicles  or 
instruments  of  local  commerce  used  or  engaged  in  carrying  it 
on,  as,  for  instance,  steamboats  or  other  means  of  transportation, 
are.  Their  situs  is  at  the  home  port,  and  they  are  taxable  by  the 
State  within  which  that  port  is  situated  just  as  other  movable 
property  is  there  taxable.  Such  home  port  is  the  port  nearest  to 
which  the  owner,  husband,  or  managing  agent  usually  resides  in, 
in  the  district  of  their  registry.  They  are  not  within  the  jurisdic- 
tion of  the  other  States  between  whose  ports  or  in  whose  waters 
they  ply  only  temporarily,  and  are  not  there  subject  to  State  tax- 
ation any  more  than  travelers  of  other  States  would  be  in  passing 
through  and  stopping  temporarily  on  business.  Vessels  thus 
employed  do  not  become  blended  with  the  taxable  interests  or 
property  of  the  States  in  which  they  temporarily  touch,  or  do 
business,  in  their  accustomed  routes.  In  the  language  of  Hunt, 
J.,  a  vessel  so  employed  is  "engaged  in  inter-State  commerce, 
with  her  home  port  still  remaining  unchanged  and  the  property 
continuing  unmixed  with  the  permanent  property  'of  either 
State"  so  visited. 2     Vessels  thus  eno^a^ed  are  free  to  come  and 


&"»^ 


>  Passenger  Cases,  7  How.  283,  408.  Ferry  Co.,  11  Wall.  423 ;   People  v. 

'  Morgan  v.  Parliam,  16  Wall.  471,  Commissioners  of  Taxes,  58  N.Y.  242 ; 

478 ;  Hays  v.  Pacific  Mail  Steamship  People  v.  Commissioners  of  Taxes,  23- 

Co.,  17  How.  596;  St.  Louis  v.  The  N.Y.  224. 


318  INTER-STATE    COMMERCE. 

free  to  go,  and  are  not,  in  law,  liable  to  be  interfered  with  in  the 
ports  of  the  diflferent  States  to  "which  they  ply,  except  as  it 
respects  such  municipal  and  sanitary  regulations  of  the  local 
authorities  as  are  not  inconsistent  with  the  constitution  and  laws 
of  the  general  government,  to  which  belong  the  regulation  of 
commerce  between  the  States.  ^  If  this  were  not  so,  then  aside 
from  the  indirect  eflect  upon  the  inter-State  commerce  which  the 
hindrance  and  delay,  occasioned  by  claims  to  local  taxation,  might 
occasion,  there  would  result  inexplicable  difficulties  to  the  owners 
by  the  conflicting  claims  of  taxation  set  up  in  the  different  States 
in  whose  ports  they  enter.  The  circumstances,  in  the  case  of 
Morgan  v.  Parham^  were  these:  A  vessel  engaged  in  the  coast- 
ing, or  inter-State  commerce,  between  Mobile  and  New  Orleans, 
but  which  before  so  engaging  was  duly  registered  in  the  port  of 
New  York  under  the  ownership  of  the  plaintiff,  Morgan,  was 
seized  for  taxes  by  the  tax  collector  of  the  city  of  Mobile  for 
taxes  levied  upon  her  by  said  city.  The  owner,  Morgan,  brought 
an  action  of  trespass  for  the  seizure  against  the  oflicer,  and  the 
cause  being  decided  in  favor  of  the  defendant,  and  the  legality 
of  the  tax  asserted  by  the  court,  the  case  went  to  the  supreme 
court  of  the  United  States,  and  judgment  was  there  reversed, 
that  court  ruling  as  herein  before  stated  that  the  vessel  was  taxa- 
ble only  at  the  home  port  of  the  owner.  The  case  here  cited  of 
Hays  v.  The  Pacijic  Steamshii)  Co.^  was  of  a  similar  character, 
and  originated  out  of  an  effort  of  the  authorities  of  the  State  of 
California  to  tax  the  steamships  of  said  company,  registered  in 
New  York,  and  plying  and  carrying  freight  and  passengers  in 
connection  between  New  York  and  San  Francisco.  The  effort 
at  taxation  was  held  to  be  illegal. 

So  of  Ferryboats  at  Inter- State  Ferries.  So  ferryboats  belong- 
ing to  a  corporation  of  one  State,  employed  and  used  in  ferrying 
persons  and  property  from  and  to  such  State,  across  a  navigable 
river  to  and  from  another  Sta,te,  at  the  opposite  shore  of  such 
river,  and  making  such  opposite  shore  a  mere  landing  place  and 
terminus  for  discharging  and  receiving  persons  and  property  so 
carried  or  to  be  carried  across  said  river,  are  not  subject  to  local 
taxation  by  the  authorities  of  such  latter  State,  or  of  an}'  of  its 
municipal  governments  of  towns  or  cities  at  which  said  boats 

»  Morgan  t.  Parham,  16  Wall.  471;      17  How.  596. 
Hays  V.  Pacific  Mail  Steamship  Co.,         « 17  How.  596.- 


STATE    PROPERTY    TAX    OF    VESSELS.  319 

thus  land.i  Tlieir  home  situs  is  in  the  State  where  the  corpora- 
tion owning  and  thus  employing  them  resides  and  exists,  which 
is  in  the  State  wherein  the  corporation  is  by  law  created, ^  and  in 
that  State  only,  while  thus  employed,  they  are  liable  as  'proyeTty 
to  be  taxed.  3 

The  "Wiggins  Ferry  Company,  a  private  corporation  created 
under  the  laws  of  the  State  of  Illinois,  was  engaged  in  ferrying 
persons  and  property  across  the  Mississippi  river,  between  the 
Illinois  shore  of  said  river  and  the  opposite  shore  thereof,  in  the 
State  of  Missouri.  The  boats,  when  not  running,  were  kept  at 
the  Illinois  shore,  and  when  running,  their  stoppage  at  the  Mis- 
souri shore  was  limited  in  time  by  the  St.  Louis  city  authorities, 
and  was  merely  temporary,  to  put  off  and  take  on  persons  and 
property  transported  or  to  be  transported  across  the  river  from 
one  State  to  the  other.  But  the  boats  were  registered,  under  the 
United  States  laws,  at  the  registry  office  in  St.  Louis.  That  city 
assumed  the  right  to  tax  said  boats  as  proper^ty,  which  was 
resisted  by  the  ferry  company  by  legal  proceedings  in  the  circuit 
court  of  the  United  States  for  the  district  of  Missouri.  Said 
circuit  court  of  the  United  States  held  that  the  tax  was  illegal, 
and  on  error  to  the  supreme  court  of  the  United  States  that 
court  affirmed  the  decision  of  the  court  below,  and  held  that  as 
property  th6  boats  were  taxable  only  in  the  State  of  Illinois, 
where,  in  fact,  it  appeared  that  a  tax  was  paid  upon  them. 
SwAYNE,  J.,  delivering  the  opinion  of  the  court,  says:*  "The 
owner  was,  in  the  eye  of  the  law,  a  citizen  of  that  State  (Illinois), 
and  from  the  inherent  law  of  its  nature  co'ild  not  emigrate  or 
become  a  citizen  elsewhere.  As  the  boats  were  laid  up  on  the 
Illinois  shore  when  not  in  use,  and  the  jjilots  and  engineers  who 
ran  them  lived  there,  that  locality,  under  the  circumstances, 
must  be  taken  to  be  their  home  port.  They  did  not  so  abide 
within  the  city  (St.  Louis)  as  to  become  incorporated  with,  and 
form  a  part  of,  its  personal  property."  Hence  they  were  beyond 
the  jurisdiction  of  the  authorities  by  which  the  taxes  were 
assessed,  and  the  validity  of  the  taxes  cannot  be  maintained."  ^^ 

'  St.  Louis  V.  The  Ferry  Co.,  11          *  Citing  here  Hays  t.  Pacific  Steam- 
Wall.  423,  433.  ship  Co.,  17  How.  596;  New  Albany 
"^  Ibid.  «.  Meekin,  3  Ind.  481. 
*  Ibid.  6  Here  citing  Railroad  Company  v. 
4  11  Wall.  481,  433.  Jackson,  7  Wall.  262. 


820  INTER- STATE   COMMERCE. 


V.    Pilotage. 

The  regulation  of  pilotage  of  sea-going  vessels  in  national 
waters  of  a  State,  though  a  subject  which  Congress  has  a  right, 
under  the  national  constitution,  to  assume  and  exercise  the  ex- 
clusive control  of,  is  nevertheless  one  that  may  be  exercised  by  a 
State  until  Congress  shall  see  fit  to  act  upon  the  subject.'  When 
so  acted  on  by  Congress,  the  authority  of  the  State  retires  and 
lies  in  abeyance  until  there  is  a  recurrence  of  the  occasion  for  its 
exercise.  3 

Half  Pay  when  Service  Declined.  State  laws  regulating  pilot- 
age, where  such  occasion  exists  for  them,  are  valid,  and  a  provision 
that  gives  half  pay  to  a  pilot  who  is  first  to  tender  his  service 
and  is  refused,  is  a  reasonable  regulation,  that  is  enforcible  in 
the  United  States  court  as  arising  out  of  the  commercial  marine, 
although  the  law  upon  which  the  claim  to  such  pay  is  based  be 
a  statute  passed  by  a  State. 

Such  right  of  recovery  is  not  as  for  a  tort,  but  as  matter  of 
contract.  The  law  fixes  the  compensation  for  services  and  com- 
pels the  pilot  to  ofier  to  serve.  If  his  service  is  declined,  the 
same  law  fixes  his  compensation  for  the  labor  performed  and 
time  consumed,  and  risks  incurred  in  going  out,  and  implies  a 
promise  on  the  part  of  the  ship  owner  or  master  to  pay  the 
same,  and  gives  a  lien  on  the  vessel  for  the  amount.' 

Jurisdiction  of  Federal  Court.  The  jurisdiction  of  the  Fed- 
eral court  over  the  subject  is  not  by  virtue  of  the  State  law,  for 
a  State  law  cannot  confer  jurisdiction  on  a  national  court.  That 
jurisdiction  is  in  virtue  of  the  subject  matter  being  of  maritime 
concern,  and  the  only  eflfect  of  the  State  law  is  to  invest  the 
party  with  a  right  of  action;  tliat  is,  a  right  to  recover  the  legal 
compensation  fixed  in  such  cases  thereby.'*  The  enforcement 
thereof  may  be  in  any  court  competent  to  take  jurisdiction  of 
the  subject  matter.  Hence  this  has  sometimes  been  done  in  the 
State  courts. 

'  Cooley  V.  Wardens  of  Philadel-  *  Ex  parte  McNiel,  13  "Wall.  236, 

pbia,  12  How.  299 ;  Ex  parte  McNiel,  240. 

13Wall.  236;  Oilman  C.Philadelphia,  ^  Ex  parte  McNiel,  13  Wall.  236; 

3  Wall.  713;  Steamship  Co.  v.  Port  Steamship  Co.  c.  Joliffe,  2  Wall.  450. 

AVardens,  6  Wall.  31 ;  Steamship  Co.  *  Exparte  McNiel,  13  Wall.  236, 243 ; 

«.  Joliflfe,  2  Wall.  450.  Hobart  v.  Drogan,  10  Pet  108,  120. 


STATE    CONTROL    OF    BAYOUS    AND    SLOUGHS.         321 


VI.    "Warehousing  and  Elevating. 

But  the  legislatures  of  the  States  may  regulate  the  business 
of  warehousing  and  elevating  of  grain,  when  such  warehouses 
and  elevators  are  situated  clearly  within  tlie  territorial  limits  of 
the  respective  States  assuming  to  regulate  the  same,  notwith- 
standing the  grain  be  in  course  of  inter-State  transportation,  or 
is  intended  to  be  carried  out  of  one  State  into  or  through  another 
State,  and  notwithstanding  such  regulation,  and  the  costs  and 
expenses  incident  thereto,  may  indirectly  affect  the  value  of  the 
property,  or  profits  thereof;  but  the  State  cannot  in  any  manner 
interfere  with  its  inter-State  carriage  or  traffic. ^ 

YII.     State  Control  of  Bayous  and  Sloughs  of  Eivers. 

The  bayous  and  sloughs  of  great  and  navigable  rivers,  such  as 
is  the  Mississippi  Eiver,  which  are  not  required  by  the  interests 
of  commerce  to  be  preserved  for  the  purposes  of  navigation,  are 
under  the  control  of  the  governments  of  States  in  which  they  are 
situated.  The  obstruction  of  them  by  the  city  authorities  of 
such  States,  within  the  corporate  limits  of  cities,  for  purposes 
of  local  improvement,  is  not  an  interference  with  commerce 
between  the  States,  nor  a  violation  of  the  ordinance  and  laws 
respecting  the  freedom  of  navigation  of  such  rivers,  or  declaring 
them  common  highways,  although  such  bayous  and  sloughs  be 
susceptible  of  being  navigated.* 

'  Munn  V.  Illinois,  4  Otto,  113.    See  »  Ingraham  v.  Chicago,  D.  &  M.  R. 

Cooley  on  Const.  Limitations,  4th  ed,  R.  Co.,  84  Iowa,  249 ;  People  «.  St. 

743,  et  seq.  Louis,  10  111.  850. 
21 


b22  STATE   TAXATION   OF   NATIONAL   BANKS. 


CHAPTER   XXX. 

STATE  TAXATION  OF  NATIONAL  BANKS,  BONDS  AND  CREDITS. 

I.    State  Taxation  op  National  Banks  and  Shabes  of  Stock  in  the 
Same. 
II.    State  Tax  on  National  Bonds  or  Credits. 

I.     State  Taxation  of  National  Banks  and  Shares  of  Stock  in 

THE  Same. 

Capital  Stock.  The  capital  stock  of  national  banks,  consisting 
in  part,  or  as  a  whole,  of  stocks  or  bonds  of  the  national  govern- 
ment, is,  upon  general  principles,  not  a  legitimate  subject  of 
State  or  municipal  taxation. ^ 

Ijands  Taxable.  But  the  lands  of  the  corporation  may  be 
taxed,  as  other  lands  are  taxed;  they  do  not  partake  of  the  char- 
acter of  government  securities,  as  does  the  capital,  which  consists 
of,  or  rests  upon,  the  bonds  of  the  government.  ^ 

The  tax  upon  the  capital  at  an  aggregate  valuation,  is  a  tax 
upon  the  bonds,  or  property  in  wliich  the  capital  is  invested,  as 
contradistinguished  from  the  privileges  and  franchises  enjoyed 
within  the  State:  ^ 

Shares  of  Stock  Taxable.  But  the  shares  of  such  bank,  of 
capital  stock,  are  subject  to  taxation,  for  State  and  municipal 
purposes,  in  the  States  wherein  the  banks  are  located,  at  a  rate 
not  greater  than  is  assessed  upon  other  moneyed  capital,  belong- 

•  Collins  V.  Chicago,  4  Biss.  472;  Bank,  55  Penn.  St.  45;  Bradley  «. 
National  Bank  v.  Commonwealth,  9  The  People,  4  Wall.  459;  Osborn  v. 
Wall.  353;  Bradley  v.  The  People,  4  Bank  of  U.  S.,  9  Wheat.  738;  Morse- 
Wall.  459;  People  ».  Commonwealth,  man  d.  Younkin,  27  Iowa,  350;  Na- 
4  Wall.  244;  Van  Allen  0.  The  Assess-  tional  State  Bank  of  Oskaloosa  v. 
ors,  3  Wall.  573.  Young,  2-5  Iowa,  311. 

*  Bank  of  Commerce  v.  Comm.  of  '  Van  Allen  v.  The  Assessors,  8 
Taxes,  2  Black,  620;  Bank  Tax  Case,  Wall.  573;  Bradley  v.  The  People,  4 
2  Wall.  200;    Collins  v.   Chicago,  4  Wall.  459. 

Biss.  472 ;  Pittsburgh  v.  First  National 


AND    SHAKES    OF    STOCK    IN    THE    SAME.  323 

ing  to  individual  citizens  of  the  State,  and  not  in  excess  of  the 
rate  of  taxation  imposed  upon  the  shares  of  banks  organized 
under  authority  of  the  State.  They  are  the  property  of  the  in- 
dividual shareholders^  and  not  the  property  of  the  corporation, 
or  bank ;  while,  on  the  other  hand,  the  capital  of  the  bank  is  the 
property  of  the  corporation  or  bank  itself,  ^  Inasmuch  as  such 
taxation  of  the  shares  of  national  bank  stock  is  not  to  be  in 
excess  of  that  levied  upon  shares  of  banks  existing  under  the 
law  of  the  State,  it  has  been  held  that  if  none  be  enforced  on  the 
shares  of  the  local  banks,  therefore  none  can  be  imposed  upon 
the  shares  of  national  banks  for  the  time  being.  Thus,  where 
the  local  banks  were  taxable  on  their  capital,  the  shares  not  being 
taxed  as  such,  the  ruling  was  that  no  tax  could  be  enforced  upon 
the  shares  of  the  national  banks. ^  This,  however,  is  a  matter  so 
easily  obviated  by  the  States  resorting  to  taxation  of  the  indi- 
vidual shares  of  the  local  or  State  banks,  that  the  obstacle  in  that 
respect  to  taxation  of  shares  of  the  national  banks  is  merely 
temporary. 

The  Shareholder  Tax  May  be  Collected  Through  the  Bank. 
The  tax  thus  authorized  to  be  enforced  upon  the  shares  of  national 
bank  stock  is,  by  the  act  of  Congress,  made  payable  where  the 
bank  is  situated ;3  and,  to  that  end,  it  is  lawful  to  require  pay- 
ment thereof  at  the  hands  of  the  bank  itself;  for  as  such  tax  is 
allowable  upon  the  shares  as  well  of  non-residents  as  residents  of 
the  State,  there  would  be  difficulty  in  enforcing  the  tax  direct 
from  the  non-resident  owner  of  a  share  or  shares.^ 

It  is  the  general  method  of  State  taxation  of  shares  of  local 
banks,  to  which  like  taxation  of  shares  in  national  banks  is 

1  Morseman  c.  Younkin,  27  Iowa,  The  People,  4  Wall.  459 ;   National 

350;  Hubbard  «.  Supervisors,  23  Iowa,  Bank  v.  Commonwealth,  9  Wall.  353. 

130;  Lauman  «.  Des  Moines  Countj%  "■' Bradley  t).  The  People,  4  Wall.  459; 

29  Iowa,  310.    But  such  State  taxation  Hubbard  t.  Supervisors,  23  Iowa,  130 ; 

of  shares  cannot  be  enforced  under  a  Van  Allen  v.  The  Assessors,  3  Wall, 

law  of  the  State  subjecting  the  capital  573. 

ofsuch  banks  to  taxation.    The  power  ^  Act  of  June  3, 1864,  U.  S.  Stat,  at 

to  tax  the  capital  the  State  does  not  Large,  Vol.  15,  34;  2  Brightley's  Dig. 

possess,  aud  the  power  to  tax  the  p.  67;  R.  S.  of  U,  S.  1874,  §  5219,  p. 

shares,  though  it  exist,  cannot  be  eu-  1015. 

forced  without  a  law  providing  there-  '»  Lionberger  «.  Rouse,  9  Wall.  468 ; 

for. — Ibid.    Van  Allen  «.  The  Assess-  National  Bank  v.  Commonwealth,  9 

ors,  3  Wall.  573 ;  People  ?;.  The  Com-  Wall.  353. 

missioners,  4  Wall.  344;  Bradley  v.  " 


321  STATE    TAXATION    OF    NATIONAL    BANKS. 

required  to  coutbrm,  and  except iotiable  cases  do  not  deprive  a 
State  of  power  to  tax  under  the  act  of  Congress.  ^  It  is  not 
understood  that  tlie  power  thu8  to  tax  the  shares  of  stock  in  the 
national  banks  is  conferred  upon  the  States  by  said  act  of  Con- 
gress, but  that  such  power  being  concurrent  in  the  State  and 
Federal  governments,  as  to  corporations  created  under  authority 
of  the  latter,  when  the  paramount  right  of  the  latter  is  not 
asserted,  that  by  the  act  of  Congress  merely  the  intent  of  Con- 
gress not  to  exercise  the  power,  but  to  leave  it  with  the  States 
for  the  time  being,  is  avowed  ;3  thus  leaving  in  the  State  the 
exercise  of  the  privilege  until  Congress,  as  it  may  at  any  time 
do,'  asserts  and  assumes  to  exercise  the  national  paramount 
authority  and  jurisdiction  over  the  subject. 

II.     State  Tax  on  National  Bonds  oe  Ckedit. 

Likewise,  State  laws  taxing  bonds  of  the  national  government, 
or  other  means  devised  or  employed  by  it  for  carrying  out  its  con- 
stitutional powers  and  functions,  are  unconstitutional  and  void. 
This  inhibition  against  State  taxation  applies  to  every  species  and 
form  of  indebtedness  of  the  national  government  resorted  to 
or  used  for  the  purpose  of  carrying  out,  or  in  the  course  of 
executing  the  powers  invested  in  it  by  the  Constitution.'* 

The  power  of  the  States  to  impose  and  collect  taxes  is  co-exten- 
sive only  with  their  sovereign  power  over  property  interests  and 
things  within  their  own  territorial  limits,  and  constitutional 
sphere  of  action.  That  is,  to  every  thing  and  interest  that  exists 
by  State  authority  or  permission,  but  does  not  extend  to  those 
means  originated  and  employed  by  Congress  to  carry  into  execu- 
tion those  powers  conferred  on  that  body  and  the  national  gov- 
ernment by  the  Constitution  and  people  of  the  United  States. 
Among  those  powers  is  the  power  to  borrow  money  on  the  credit 

>  Lionberger  c.  Rouse,  9  Wall.  468.  McCulloch  v.  Maryland,  4  Wheat.  316 ; 

«  Van  Allen  tJ.The  Assessors,  3  Wall.  Brown  v.  Maryland,  12  Wheat  419 ; 

673,  58.=).  The  Banks  «.  The  Mayor,  7  Wall.  16 ; 

5  Gilman  n.  Philadelphia,  8  Wall.  Bank  of  Commerce  v.  Commission. 

713,  731,  733.     But  "  Congress  may  ers  of  Taxes  of  New  York,  2  Black, 

interpose,  whenever  it  shall  be  deemed  620,  628 ;  Bank  Tax  Case,  2  Wall.  200 ; 

necessary,  by  general  or  special  laws."  Bank  v.  The  Supervisors,  7  Wall.  26 

Ibid.  732.  See,  further,  Cooley  on  Taxation,  56„ 

*  Weston  «.  Charleston,  2  Pet.  449 ;  et  seq. 


BONDS    OK    CEEDITS.  325 

of  the  United  States.  To  allow  State  taxation  of  government 
stocks  or  bonds  in  the  hands  of  individuals,  or  other  means 
resorted  to  by  the  government  to  carry  out  its  functions  and 
maintain  its  constitutional  authority,  would  put  it  in  the  power 
of  the  States  to  obstruct,  retard  and  cripple  the  national  power, 
by  depreciating  the  credit  of  the  government  and  j)lacing  local 
difficulties  in  the  way  of  its  constitutional  action. i  The  case  of 
Weston  V.  The  City  of  Charleston,^  cited  above,  originated  in 
an  attempt  of  that  city  to  tax  United  States  stocks  issued  for 
money  loaned,  in  the  hands  of  Weston.  The  supreme  court  of 
the  United  States,  Marshall,  J.,  say,  in  delivering  the  opinion 
in  that  case:  "  The  tax  on  government  stock  is  thought,  by  this 
court,  to  be  a  tax  on  the  contract,  a  tax  on  the  power  to  borrow 
money  on  the  credit  of  the  United  States,  and  consequently  to  be 
repugnant  to  the  Constitution." 

1  McCulloch  V.  Maryland,  4  "Wheat.         '  2  Pet.  469. 
816;  Weston  v.  Charleston,  2  Pet.  449. 


326  BANKRUPTCY. 


CHAPTER  XXXI. 

BAKKRUPTCr. 

I.  Effect  oth  Juhisdiction  of  State  Coukt. 

II.  Fixed  Liens. 

III.  State  Insolvent  or  Bankrupt  Laws. 

IV.  State  Insolvent  Laws.    How  Affected  by  National  Bankrupt 

Law. 

I.    Effect  on  Jurisdiction  of  State  Courts. 

Civil  Proceeding  Arrested  in  State  Court.  Proceedings  in 
bankruptcy  in  the  district  court  of  the  United  States  arrest  all 
ordinary  civil  proceedings  pending  and  undecided  in  the  State 
courts,  except  those  upon  contract  liens  and  upon  attachments, 
where  the  latter  have  l)een  commenced  not  less  than  four  months 
next  preceding  the  inception  of  the  proceedings  in  bankruptcy. ^ 

Attacliments.  Attachment  proceedings  against  the  bankrupt, 
commenced  more  than  four  months  before  the  commencement 
of  the  proceedings  in  bankruptcy,  are  no  further  affected  thereby 
than  to  prevent  a  judgment  m  'personatn  against  the  defendant 
for  the  time  being,  before  decision  as  to  his  final  discharge;  and 
if  discharged,  then  to  prevent  such  personal  judgment  entirely; 
but  the  attached  property,  if  liability  be  established,  may  be 
sold,  or  enough  thereof,  to  discharge  such  liability  and  costs,  by 
judgment  of  the  State  court,  as  in  case  no  bankrupt  proceedings 
were  pending.  ^ 

In  attachment  proceedings  in  a  State  court  instituted  less  than 
four  months  before  the  commencement  of  the  bankrupt  proceed- 
ings in  the  Federal  court,  the  effect  of  the  latter  is  to  dissolve  the 

'  14  U.  S.  Stat,  at  Large,  533 ;  R.  S.  159 ;  Same  Cases,  99  Mass.  376 ;  Samp- 

of  U.  S.  of  1874,  §  5044;  In  re  Pat-  son  t.  Burton,  4  Nat.  Bank.  Reg.  1 

terson  Nat.  Bank.  Reg.  Sup.  to  Vol.  1,  Bowman  t.  Harding,  56  Maine,  559 

27;  Hatch  t.  Seeley,  37  Iowa,  493;  Leighton  c.  Kelsey,  57    Maine,  85 

Blumenstiel  on  Bankruptcy,  187.  Hatch  v.  Seeley,  37  Iowa,  493 ;  Blu- 

*  Bates  0.  Tappan,  3  Nat.  Bank.  Reg.  menstiel  on  Bankruptcy,  189. 


STATE    INSOLVENT    LAWS.  327 

attachment  and  arrest  the  proceedings  in  the  State  court,  and  to 
bring  under  jurisdiction  of  the  United  States  court  the  subject 
matter  thereof,  placing  the  plaintiff  in  attachment  on  the  same 
footing  of  equality  as  other  creditors,  who  have  no  lien,  and 
vesting  in  the  assignee  in  bankruptcy  the  property  which  was 
previously  held  by  the  attachment,  i 

II.     Fixed  Liens. 

Creditors  having  fixed  liens  on  property  of  the  bankrupt,  as' 
mortgages,  for  instance,  or  judgment  liens  acquired  in  good  faith, 
may  enforce  them  in  the  State  court,  if  not  redeemed  by  the 
assignee; 2  but  the  assignee  may  redeem  the  property  from  such 
lien  for  the  benefit  of  the  general  fund  and  creditors,  or  the  bank- 
rupt court  may  proceed  to  sell  such  property,  subject  to  the  lien.^ 
But  no  personal  judgment  can  be  taken  in  the  State  court  against 
the  bankrupt  during  pendency  of  the  bankrupt  proceedings  in 
the  United  States  court.* 

III.     State  Insolvent  or  Bankrupt  Laws. 

The  several  States  may  pass  bankrupt  or  insolvent  laws,  pro- 
vided they  do  not  conflict  with  such  as  are  passed  by  Congress; 
but  no  State  can,  by  any  such  law,  release  or  impair,  or  provide 
for  the  release  or  impairing,  of  the  obligation  of  contracts.  Such 
State  laws  may  act  upon  the  person  of  debtors,  so  as  to  discharge 
from  duress  of  law,  or  liability  to  arrest  or  duress  for  existing 
debts  or  obligations,  but  cannot  destroy  the  obligation  or  release 
the  subsequently  acquired  property  of  the  debtor  from  liability 
to  pay  the  same.  ^     This  statement  of  the  general  law,  however, 

'  14  U.'  8.  Stat,  at  Large,  522 ;  K.  S.  «  Bates  v.  Tappan,  3  Nat.  Bank.  Reg. 

of  U.  S.,  1874,  §  5044;  In  re  Preston,  159;  Brown  v.  Gibbons,  37  Iowa,  654, 

6  Nat.  Bank.  Reg.  545 ;  Corner  ?>.  Mai-  657;    Bowman    v.  Harding,  4  Nat. 

lory,  31  Md.  368;  In  re  Patterson,  1  Bank.  Reg.  5;  S.  G,  56  Maine,  559; 

Nat.  Bank  Reg.  Sup.  p.  27 ;  Bates  v.  Blumenstiel    on    Bankruptcy,    293 ; 


Tappan,  3  Nat.  Bank.  Reg.  159 
Leigliton  v.  Kelsey,  57  Maine,  85 
Bowman  v.  Harding,  56  Maine,  559 
In  re  Brand,  3  Nat.  Bank.  Reg.  85 


Bump  on  Bankruptcy,  594. 

^  Brown  v.  Gibbons,  37  Iowa,  654, 
657 ;  Reed  v.  Bullington,  11  Nat.  Bank. 
Reg.  408. 


In  re  Housberger,  2  Ibid.  33;  In  re  *  McKay  v.  Funk,  37  Iowa,  661,  663. 

Joslyn ,  3  Ibid.  118 ;  In  re  Williams,  3  '  Sturges  v.  Crowninshield,  4  Wheat. 

Ibid.  74;  Hatch  «.  Seeley,  37  Iowa,  122,  196,  197;  McMillan  v.  McNeill. 

493;  Stuart  v.  Hines,  33  Iowa,  60.  4  Wheat,  209;  Ogden  v.  Saunders,  13 


328  BANKRUPTCY. 

is  subject  to  these  exceptions:  That  in  the  absence  of  Federal 
legislation  on  the  subject,  States  may  pass  insolvent  laws  which 
will  discharge  the  debtor  from  the  obligation  of  subsequently 
existing  debts,  where  such  debts  were  contracted  within  the  State, 
and  by  persons  resident  in  the  same. ^  But  where  the  contract 
or  debt  is  one  existing  between  citizens  of  different  States,  or  the 
same  was  created  in  another  State,  no  State  insolvent  law  can  dis- 
charge the  obligation  of  the  same,  unless  by  the  appearance  and 
consent  of  the  party  to  whom  the  obligation  is  owing.*  The 
right  of  the  State  to  pass  such  laws  does  not  emanate  as  a  grant 
of  power  from  the  Federal  Constitution,  but  existed  in  the  State 
governments  prior  to  the  adoption  of  that  instrument  by  the 
States;  but  the  Constitution  limited  its  exercise  by  the  provision 
therein  that  no  State  shall  make  any  law  impairing  the  obliga- 
tion of  contracts,  and  by  giving  to  Congress  power  to  provide  a 
uniform  law  of  bankruptcy.'  So  that,  under  the  Constitution, 
whatever  the  power  of  the  States  previously  might  have  been  in 
that  respect,  no  insolvent  or  bankrupt  law,  nor  any  other  law, 
may  by  them  be  made  impairing  the  obligation  of  contracts; 
and  though  the  States  may  pass  bankrupt  laws,  under  that  name, 
or  under  that  of  insolvency,  until  Congress  has  exercised  its 
powers  on  the  subject  by  providing  a  uniform  system,  or  even 
after  the  exercise  thereof  by  Congress,  yet  such  State  laws  may 
not  go  to  the  extent  of  impairing  or  acting  upon  contracts,  and 
must  not  conflict  with  the  acts  of  Congress  on  the  subject.  The 
power  to  make  laws  impairing  contracts  exists  exclusively  in 
Congress.*  Though  this  power  vested  in  Congress  to  establish 
uniform  laws  on  the  subject  of  bankruptcy  is  not  in  express 
words  made  exclusive,  yet  it  is  in  effect  so  in  regard  to  the  im- 

Wheat  213 ;  Boyle  c.  Zacharie,  6  Pet.  Wagner,  Baldwin,  300;    Suydam    «. 

638 ;  Cooley  on  Const.  Lim.  4th  Ed.  Broadnax.   14  Pet.  75 ;   Donnelly  «. 

859.  Corbett,  7  N.  Y.  500 ;  Kelley  v.  Drury, 

'  Ogden  V.  Saunders,  12  Wheat.  213 ;  9  Allen,  27 ;  Pratt  v.  Chase,  44  N.  Y. 

Sturges  V.  Crowninshield,  4  Wheat.  597;  Baldwin  v.  Hale,  1  Wall.  231; 

122;    Cook  V.  Moffat,  5   How.  309;  McMillan  v.  McNeill,  4  Wheat  209; 

Boyle  V.  Zacharie,  6  Pet.  348;  Mather  Marsh  v.  Putnam,  3  Gray,  551. 

e.  Bush,  IG  John.  233 ;  Gilmanw.Lock-  '  Sturges  r.  Crowninshield,  4  Wheat 

wood,  4  Wall.  409 ;  Pratt  v.  Chase,  44  122,  193,  199. 

N.  Y.  597.  *  Sturges  v.  Crowninshield,  4  Wheat 

»  Cases  cited  above,  and  also  Spring.  122,  193,  194,  208;  McMillan  v.  Mc- 

er  V.  Foster,  2  Story.  387;  Wyman  v.  Neill,  4  Wheat  209;  Farmers'  &  Me- 

Mitchell,  1  Cow.  316;  Woodhull  v.  chauics' Bank  c.  Smith,  6  Wheat  131. 


HOW  AFFECTED  BY  NATIONAL  LAWS.       329 

pairing  by  such  laws  the  obligations  of  contracts,  for  the  latter, 
being  inhibited  to  the  States,  is  necessarily  exclusively  in  Con- 
gress. ^  In  the  case  of  Sturges  v,  Crowninshield,  above  cited, 
the  supreme  court  of  the  United  States,  Marshall,  C.  J.,  say; 
"  This  court  is  ol  the  opinion  that  since  the  adoption  of  the  Con- 
stitution of  the  United  States,  a  State  has  authority  to  pass  a 
bankrupt  law,  provided  such  law  does  not  impair  the  obligation 
of  contracts,  within  the  meaning  of  the  Constitution,  and  pro- 
vided there  be  no  act  of  Congress  in  force  to  establish  a  uniform 
system  of  bankruptcy  conflicting  with  such  law."^ 

IV.     State   Insolvent   Laws.      How  Affected  by   Na'honal 
Bankrupt  Law. 

As  to  the  effect  of  a  general  national  bankrupt  law  upon  the 
insolvent  laws  of  the  several  States,  there  has  been  a  diversity  of 
rulings,  as  well  in  the  national  as  in  the  State  courts.  In  Iowa 
and  some  others  of  the  States,  the  State  courts  have  held  that 
assignments  under  a  general  State  insolvent  law  for  the  general 
benefit  of  creditors,  is  valid  as  against  an  assignee  of  the  same 
debtor  in  bankruptcy  where  the  bankrupt  proceedings  were  com- 
menced after  the  making  of  the  assignment. ^  In  others  of  the 
State  courts  the  rulings  have  been  the  other  way.'*  So,  in  the 
national  courts  of  original  jurisdiction,  there  has  been  a  like 
diversity  of  decisions.  In  some  of  the  districts  the  State  insolv- 
ent laws  have  been  regarded  as  still  in  force,  and  proceedings 
under  them  have  been  respected  when  commenced  anterior  to  the 
commencement  of  the  proceedings  in  bankruptcy. ^  In  others  it 
has  been  held  that  the  taking  eflect  of  the  general  bankrupt  law 
of  the  United  States  had  the  effect  of  suspending  the  force  of  the 
State  insolvent  laws  during  its  continuance.^     With  this  diver- 

1  Sturges  V.  Crowninshield,  4  Wheat.  Day  v.  Bardwell,  97  Mass.  246 ;  Blauch- 
193,  194.  arcl  v.  Russell,  13  Mass.  1 ;  Griswold 

2  4  Wheat.  208.  v.  Pratt,  9  Met.  16. 

8  Reed  v.  Taylor,  32  Iowa,  209;  in  *  Sedgwick  v.  Place,  1  Nat.  Bank. 

re  Hawkins,  2  Nat.  Bank.  Reg.  132 ;  Reg.  204 ;  Sedgwick  v.  Menck,  Ibid. 

Clark  V.  Bininger,  38  How.  Pr.  341;  108,  204;  In  re  Campbell,  Ibid.  Sup- 

8-  C,  39  Ibid.  363;  Ex  parte  Ziegen-  plement,  36;  In  re  Hawkins,  2  Ibid, 

fuss,  2  Ired.  L.  463 ;  Cole  v.  Duncan,  3  122 ;  Langley  i-.  Perry,  Ibid.  180. 

Chicago  Legal  News,  323.  ^  Ex  parte  Eames,  2  Stor3%  322; 

*  Meekin  v.  Creditors,  19  La.  Ann.  Thornhill  v.  The  Bank  of  Louisiana, 

497;  8.  G.,  3  Nat.  Bank.  Reg.  126;  3  Nat.  Bank.  Reg.  110. 


330  BANKRUPTCY. 

sity  of  rulings  it  was  justly  said  by  Cole,  Justice,  who  delivered 
the  opinion  in  the  Iowa  case  of  Heed  Bros.  <&  Co.  v.  Taylor y^ 
the  question  could  only  be  determined  by  the  Supreme  Court  of 
the  United  States.  At  that  time  no  decision  of  the  question  had 
been  made  by  that  court  of  last  resort.  In  the  case  of  Mayer  v. 
Hellman,^  decided  by  the  Supreme  Court  of  the  United  States 
in  1875,  it  was  held  that  the  Federal  bankrupt  law  did  not 
invalidate  necessarily  the  State  insolvent  laws.  But  that  both 
might  exist  at  the  same  time.  Nevertheless,  if  the  assignment 
was  made  within  six  months  previous  to  the  institution  of 
bankruptcy  proceedings  (three  months  if  the  proceedings  are 
involuntary),  then  the  assignment  will  not  be  sustained. ^ 

>  32  Iowa,  209.  enstiel  on  Bankruptcy,  600 ;  Bishop 

« 1  Otto,  496.    See,  further,  Blum-      on  Insolvent  Debtors,  §  233. 

8  Mayer  «.  Hell  man,  1  Otto,  496. 


WEIT    OF    HABEAS    COKPUS.  331 


CHAPTER   XXXII. 

WRIT   OF   HABEAS   CORPUS. 

I.    Fkom  a  State  Court. 
II.    From  a  United  States  Court. 
III.    The  Return  of  the  Writ. 

I.     From  a  State  Court. 

The  writ  of  habeas  corpus^  though  a  writ  of  liberty,  cannot 
authorize  a  State  court  or  State  judge  to  discharge  from  custody 
a  person  held  or  imprisoned  by  an  officer  or  court  of  the  United 
States,  under  authority,  or  claim,  and  color  of  authority,  of  the 
national  government.  ^  If  the  petition  or  application  for  the 
writ  shows  that  the  detention  or  imprisonment  is  under  the 
national  authority,  or  by  an  officer  thereof  claiming  to  hold  the 
party  in  virtue  and  under  color  of  such  authority,  then  the  writ 
should  be  denied;^  but  if  the  petition  merely  allege  illegal  impris- 
onment or  detention,  without  so  showing  the  claim  of  authority 
by  which  the  prisoner  is  detained,  then  the  writ  should  issue,  and 
if  by  the  return  of  the  officer  or  other  custodian  of  the  person 
held,  or  otherwise,  it  is  made  to  appear  that  the  prisoner  is  held 
under  authority,  or  claim  and  color  of  authority  of  the  United 
States,  then  the  court  or  judge  issuing  the  writ  is  to  go  no  further, 
but  should  dismiss  the  writ,  leaving  the  person  detained  where  it 
found  him,  for  the  sole  jurisdiction  in  such  cases  is  in  the  courts 
of  the  United  States ;  to  those  courts  the  party  in  custody  can 
apply  for  relief,  and  their  ruling,  if  not  appealed  from,  is  linal; 
or  if  appealed  from,  then  that  of  the  Supreme  Court  of  the 

*  Tarble's  Case,  13  Wall.  397 ;  Ex  many  conflicting  cases  prior  to  Tar- 

j)ar^(S  Holman,  28  Iowa,  88;  Duncan  ble's  Case  are  referred  to  and  dis- 

V.  Darst,  1  How.  301,  310;  McNutt  o.  cussed. 

Bland,  2  How.  9;  Ex  paWe  Anderson,  '  Tarble's  Case,  13  Wall.  397;  Ex 

16  Iowa,  595.    See  note  to  Hurd  on  parte  Holman,  28  Iowa,  88. 
Habeas  Corpus,  2d  Ed.,  190,  where  the 


832  WKIT    OF    HABEAS    CORPUS. 

United  States  is  final  and  binding  everywhere  upon  both  the 
Federal  and  State  courts  and  authorities.^ 

II.     FROii  A  United  States  Couet. 

So  a  court  of  the  United  States  cannot  on  habeas  corpus  inter- 
fere with  a  prisoner  who  is  held  under  the  process  or  order  of  a 
State  court,  except  such  interference  be  for  temporary  purposes 
of  obtaining  the  evidence  of  such  prisoner  in  some  judicial  pro- 
ceeding, and  that  only  upon  writ  of  habeas  corpus  ad  testifican- 
dum.^ In  the  case  here  cited.  Ex  parte  Dorr,^  the  United 
States  Supreme  Court  say:  "  Neither  this  nor  any  other  court  of 
the  United  States  or  judge  thereof  can  issue  a  habeas  corpus  to 
bring  up  a  prisoner  who  is  in  custody  under  a  sentence  or  execu- 
tion of  a  State  court,  for  any  other  purpose  than  to  be  used  as  a 
witness.  And  it  is  immaterial  whether  the  imprisonment  be 
under  civil  or  criminal  process."  Such  prisoners  are  beyond  the 
reach  of  a  United  States  court  even  to  answer  an  indictment 
therein.'* 

III.    The  Eetuen  of  the  Weit. 

In  such  proceeding,  in  the  first  instance,  before  the  court  or 
judge  issuing  the  writ,  the  return  of  the  officer  or  person  to 
whom  it  is  directed  should  show  and  set  forth  the  process,  order 
or  authority  under  which  the  prisoner  is  held,  for  the  inspection 
of  the  court  or  judge,  that  it  may  be  known  if  the  prisoner  is 
held  in  good  faith,  under  authority,  or  claim  and  color  of  author- 
ity of  the  United  States,  and  not  under  mere  pretence  of  having 
that  authority.  The  court  or  judge  on  finding  such  to  be  the 
case,  can  proceed  no  further,  for  his  jurisdiction  there  ends.  He 
cannot  inquire  into  the  merits  of  the  question  involved.  ^  In  the 
language  of  the  Supreme  Court  of  the  United  States,  Taney,  C. 
J.,  "  they  then  know  that  the  prisoner  is  within  the  dominion 
and  jurisdiction  of  another  government,  and  that  neither  the 
writ  of  habeas  corpus  nor  any  other  process  issued  under  State 
authority  can  pass  over  the  line  of  division  between  the  two  sov- 

'  Ableman  t.  Booth,  and    United         '  Ex  parte  Dorr,  3  How.  103. 
States  ».  Booth,  21  How.  506 ;  Tarble's  »  Supra. 

Case,  18  Wall.  397.  409 ;   Ex  parte         *  Ibid. 

Holman,  28  Iowa.  88;  Ex  parte  An-         » Tarble's  Case,  13  Wall.  379,  410; 

derson,  16  Iowa,  595.  Ex  parte  Holman,  28  Iowa,  88. 


EETURN    OF    THE    WRIT.  333 

ereignties.  He  is  then  within  the  dominion  and  exclusive  juris- 
diction of  the  United  States.  If  he  has  committed  an  oftense 
against  their  laws,  their  tribunals  alone  can  punish  him.  If  he  is 
wrongfully  imprisoned,  their  judicial  tribunals  can  release  him, 
and  afford  him  redress."  ^  All  that  is  meant  by  the  necessity  of 
its  appearing  that  the  prisoner  is  held  under  authority,  or  claim 
and  color  of  authority  of  the  United  States  is,  that  it  appears 
that  the  prisoner  is  held  by  an  officer  of  the  United  States  under 
what,  in  truth,  purports  to  be  authority  of  the  United  States;  if 
that  appears,  then  the  validity  thereof  is  to  be  determined  by  the 
courts  of  the  United  States  under  the  national  constitution  and 
laws.  3 

In  the  case  of  Duncan  v.  Darst,  the  prisoner  was  arrested  and 
held  by  a  marshal  of  the  United  States,  in  a  civil  cause  in  the 
United  States  court,  by  virtue  of  a  capias  ad  testificandum, 
from  which  custody  the  State  court  assumed  to  discharge  him  in 
virtue  of  a  State  law  in  relation  to  insolvency,  but  the  Supreme 
Court  of  the  United  States  held  that  the  State  authorities  had  no 
such  power.  3 

'  Tarble's  Case,  13  Wall.  410.  «  Duncan  v.  Darst,  1  How.  801. 

» Tarble's  Case,  13  Wall.  397, 411. 


334  EIGHT   OF    COMMON. 


CHAPTER   XXXIII. 

BIGHT  OF  COMMON   IN   WASTE    PLACES    AND  WATERS,  AND   BIGHT   OP 
EMINENT   DOMAIN. 

I.  In  the  Tide  Waters  and  Waste  Places. 

II.  In  the  Navigable  Inland  Rivers  and  Land  Thereunder. 

III.  Ownership  and  Local  Jurisdiction  of  Boundary  Waters. 

IV.  Right  op  Eminent  Domain. 

I.    In  The  Tide  Watebs  and  Waste  Places. 

Is  in  the  People  of  the  State.  The  right  of  common  in  the 
tide  waters,  rivers,  and  waste  places  of  the  several  States  appro- 
priated to  the  use  of  their  respective  citizens  is  a  property  right, 
the  ownership  of  which  is  in  the  people  of  each  State,  in  their 
aggregate  sovereign ty.i  It  is  a  right  not  of  citizenship  alone, 
but  of  citizenship  and  property  combined. ^ 

Limitation  of  Use  Thereof.  Each  State  may,  subject,  however, 
to  freedom  of  commerce  and  to  the  power  of  Congress  over  the 
same,  control  and  limit  the  use  of  the  same  at  will,  and  may 
restrict  the  use  thereof  to  its  own  citizens;  for  this  common 
property  in  a  State,  or  the  use  thereof,  is  not  vested  in  citizens 
of  other  States  by  force  of  that  clause  of  the  United  States  Con- 
stitution which  declares  that  the  citizens  of  each  State  are  "en- 
titled to  all  tlie  privileges  and  immunities  of  citizens  of  the 
several  States."  ' 

II    In  Navigable  Inland  Watebs  and  Land  Thereunder. 

Belong  to  the  States.  The  shores  of  and  ground  under  the 
navigable  waters  belong  to  the  States;  not  by  grant  from  the 
general  gov^ernment,  but  because  they  never  were  parted  with.* 

'  Martin  v.  Waddell,  16  Pet  867,  «  McCready  v.  Virginia,  4  Otto,  391, 

410;  State  t.  Medbury,  3  R.  I.  188.  395;  State  v.  Medbury,  3  R.  I.  138. 

'McCreadyi).  Virginia,  4  Otto,  891,  <  Pollard  v.  Hagan,  3  How.  212; 

595.  People  v.  Tibbetts,  19  N.   Y.   523; 


EMINEN-T    DOMAIN.  335 

And  upon  terms  of  admission  the  same  rights  in  that  respect 
exists  in  the  new  States.  ^ 

But  this  ownership,  or  right  of  the  several  States,  is  subject  to 
the  paramount  right  of  the  national  government  in  reference  to 
the  regulation  of  commerce.  ^ 

III.     Ownership  and  Local  Jueisdiction  of  Intee-State 
Boundary  Waters. 

In  the  absence  of  other  express  grant  or  arrangement,  when 
two  States  have  coterminous  boundaries  on  such  water,  each  takes 
jurisdiction  to  the  center  thereof,  except  as  to  the  admiralty 
jurisdiction,  and  counties  of  such  States  expressed  to  be  bounded 
by  such  waters  will  be  held  to  extend  to  such  coterminous  State 
boundaries,  in  the  center  of  the  river  or  water,  although  in  the 
law  creating  them  they  be  said  to  extend  to  low  water  mark. 
By  intendment  of  law  they  are  limited  only  by  the  center  of  the 
water  or  stream.  ^ 

Right  of  rishery.  And  each  State  and  its  citizens  has  the 
exclusive  riglit  of  j&shery  in  its  own  internal  waters,  and  may 
prevent  the  taking  thereof  by  citizens  of  other  States.* 

lY.     Right  of  Eminent  Domain. 

The  right  of  emine7it  domain,  not  only  on  land  but  also  over 
the  soil  under  the  navigable  waters,  for  all  municipal  'purposes, 
helongs  exclusively  to  the  States  within  their  respective  territorial 
jurisdictions,  where  not  ceded  to  the  United  States;  but  it  is  a 
municipal  authority,  and  one  which  may  not  be  so  used  as  to 
affect  the  exercise  of  any  right  of  commerce  or  national  domain 
of  the  national  government,  under  the  constitution  of  the  United 
States  and  laws  made  in  pursuance  thereof; ^  and  except  as  re- 
gards the  public  lands  belonging  to  the  United  States. 

Mumford  v.  Wardwell.  6  Wall.  423;  Trans.  Co.,  35  N.  Y.  353;  Martin  v. 

Mahler  «.  Norwich    &   New    York  Waddell,  16  Pet.  367,  410;  Corfield  v. 

Trans.  Co.,  35  N.  Y.  352;   Martin  v.  Coryell,  4  Wash.  C.  C.  371,  385,  386; 

Waddell,  16  Pet.  367,  410;  Corfield  v.  People  v.  New  York  &  Staten  Island 

Coryell,  4  Wash.  C.  C.  371,  385,  386;  Ferry  Co.,  68  N.  Y.  71. 

People  V.  New  York  &  Staten  Island  ^  ;},];a]iier  v.  Norwich  &  New  York 

Ferry  Co.,  68  N.  Y.  71.  Trans.  Co.,  85  N.  Y.  352;  Corfield  v. 

'  Pollard  V.  Hagan,  3  How.  213.  Coryell,  4  Wash.  C.  C.  386. 

2  People  V.  Tibbetts,  19  N.  Y.  533;  *  State  v.  Medbury,  3  II.  1.  138. 

Mahler  e.  Norwich  &   New   York  '  Pollard  v.  Hagau,  8  How.  230. 


336     JURISDICTION   OVEB   STATE   BOUNDARY    RIVERS. 


CHAPTER    XXXIV. 

JTJEI8DICTI0N   OVER   STATE   BOUNDABY   EIVEE8. 

I.    Admiralty  Jurisdiction  of  United  States. 
II.    The  Territorial  State  Boiindary  as  to  Things  PERMANEirr. 

III.      CONCDRRENT    StATE    JURISDICTION    AND    ITS    EXERCISB    OVER    THE 

Whole  River  Except  as  to  Things  Permanent. 

I.    Admiralty  Jurisdiction  of  United  States. 

Jurisdiction  Over  Boundary  Rivers.  When  by  the  funda- 
mental laws,  or  constitutions,  or  terras  of  their  admission  into 
the  Union  as  States,  certain  of  our  States  have  navigable  rivers 
for  coterminous  boundaries,  with  concurrent  jurisdiction  in  each 
over  tlie  waters  of  such  rivers,  as  to  matters  of  rightful  State 
jurisdiction,  yet  the  United  States  at  the  same  time  have  admi- 
ralty and  maritime  jurisdiction  over  every  part  of  such  navigable 
waters  from  shore  to  shore,  in  maritime  and  admiralty  cases. 
This  jurisdiction  of  the  national  government  and  courts  extends 
to  all  matters  and  things  of  a  maritime  character,  and  to  the  regu- 
lation of  commerce  thereon  and  intercourse  of  a  commei'cial 
nature  between  States  bordering  on,  or  reached  by  means  in  part 
of  such  navigable  waters  or  river,  i 

II.    The  Territorial  State  Boundary  as  to  Things  Permanent. 

Islands  and  Other  Local  Objects.  When  by  the  constitutions 
and  laws  of  two  adjoining  States  they  have  for  boundary  between 
them  the  main  channel  of  a  navigable  river,  and  also  have  con- 
current jurisdiction  over  the  whole  river  in  its  entire  width  from 
shore  to  shore;  yet,  notwithstanding  such  concurrent  jurisdic- 
tion, neither  of  them,  or  their  courts,  has  jurisdiction  or  cog- 
nizance of  objects  of  a  fixed  and  permanent  nature  situated  at  the 

'  Genesee  Chief  v.  Fitzhugh,  12  where  the  general  subject  of  admir- 
How.  443.    See  ante,  Chap.  XXVIII.,      alty  is  discussed. 


CONCURRENT    STATE    JURISDICTION.  337 

opposite  shore,  or  beyond  such  main  channel,  and  within  the  ter- 
ritorial boundary  of  the  other  State. ^ 

Territorial  Boundary.  The  actual  territorial  boundary  of  each 
is  the  main  channel  of  the  river;  and  this  is  the  limit  of  juris- 
diction over  permanent  objects,  natural  or  artificial. ^ 

Jurisdiction  of  Permanent  Objects.  But  in  the  very  nature 
of  things,  jurisdiction  of  permanent  objects  is  exclusive  in  the 
State  on  whose  side  of  the  main  channel  they  are  situated.  Con- 
current jurisdiction  of  the  abutting  States  over  permanent  ob- 
jects, as  islands  situated  in  the  river,  or  permanent  erections  at 
either  shore,  would  be  utterly  impracticable  in  the  administrative 
aflfairs  of  State,  as  rendering  owners  and  residents  of  such  prop- 
erty liable  to  taxation,  and  other  liabilities  and  duties  of  citizen- 
ship and  ownership,  to  each  of  the  States.  Hence,  it  can  never 
be  intended  in  law  that  jurisdictioii  which  is  concurrent  over  a 
river  is  concurrent  also  over  islands  and  other  permanently  fixed 
objects  therein.  Xor  does  the  reason  of  the  law  of  concurrent 
jurisdiction  apply  to  such  objects  whose  true  location  in  refer- 
ence to  the  center  of  the  main  channel  can  always  be  known  or 
ascertained;  but  it  was  to  obviate  the  difficulty  of  showing  on 
which  side  thereof  occurrences  of  judicial  cognizance  had  taken 
place  that  concurrent  jurisdiction  was  resorted  to  in  law. 

III.     Concurrent  State  Jurisdiction  and  its  Exercise  Over 
THE  Whole  Hiver,  Except  as  to  Things  Permanent. 

The  existence  of  concurrent  jurisdiction  in  two  States  over  a 
river  that  is  a  common  boundary  between  them,  as  more  partic- 
ularly referred  to  in  Section  I.  of  this  Chapter,  vests  in  each  of 
such  States,  and  in  the  courts  thereof,  except  as  to  things  perma- 
nent, and  except  as  to  maritime  and  commercial  matters  cogniz- 
able by  the  national  government  and  courts,  jurisdiction  both 
civil  and  criminal,  from  shore  to  shore,  of  all  matters  of  rightful 
State  cognizance  occurring  upon  such  river  in  all  parts  thereof 
where  it  forms  such  common  boundary.*     Such  concurrent  juris- 

1  Gilbert  v.  Moline  Water  flower  Power  and  Manuf'g  Co.,  19  Iowa  319, 

and  Manuf'g  Co.,  19  Iowa,  319 ;  Miss.  323. 

&  Mo.  R.  R.  Co.  V.  Ward,  2  Black,  ^  Gilbert  v.  Moline  Water  Power 

485.  and  Manuf'g  Co.,  19  Iowa,  319;  State 

•^  Miss.  &  Mo.  R.  R.  Co.  v.  Ward,  2  v.  Mullen,  35  Iowa,  199 ;  State  v.  Cam- 
Black,  485;  Gilbert  «.  Moline  Water  eron,  2  Pinn.  490.    For  a  somewhat 
22 


338     JURISDICTION    OVER    STATE    BOUNDARY    RIVERS. 

diction  obviates  the  difRculty  in  judicial  proceedings  of  ascer- 
taining on  wliich  side  of  the  main  channel  of  a  boundary  river 
occurrences  have  transpired,  or  crimes  have  been  committed.^ 

The  Jurisdiction  First  Attaching  Holds  the  Case.  Of  the 
matters  thus  subject  to  the  concurrent  jurisdiction  of  two  States 
the  court  which  gets  actual  jurisdiction  of  the  cause,  or  subject 
of  legal  adjudication,  prosecution  or  trial,  is  entitled  to  hold  the 
same  to  a  final  determination  thereof,  and  neither  party  thereto 
can  be  forced  into  a  difierent  jurisdiction  upon  the  same  subject 
matter  of  litigation,  unless  the  case  be  removable  to  the  United 
States  court. 3  Moreover,  the  full  and  final  adjudication  thereof 
upon  the  merits  by  such  court  of  concurrent  jurisdiction  directly 
made,  is  conclusive,  and  a  bar  in  all  other  courts  wherein  the 
same  subject  matter,  between  the  same  f»arties,  comes  judicially 
in  question.' 

Inequality  and  Eflfect  of  the  System.  This  system  of  concur- 
current  jurisdiction  of  the  adjoining  States,  over  a  river,  as 
common  boundary  between  them,  though  a  wise  and  almost 
necessary  provision,  is,  nevertheless,  in  some  respects,  unequal 
and  wanting  in  uniformity  in  its  operation  and  eflfect. 

First,  in  a  criminal  point  of  view.  Each  State,  in  carrying  out 
its  own  concurrent  jurisdiction,  must  do  so  in  the  enforcement  of 
its  own  laws.  It  cannot  enforce  those  of  the  other  State.  This  must 
be  the  result,  not  only  as  to  the  practical  administration  thereof  in 
its  courts,  but  also  as  to  the  measure  of  culpability  or  criminality 
and  punishment.  Upon  general  principles,  not  even  an  arrest  may 
be  made  except  for  the  alleged  violation  of  law,  and  that  law  must 
needs  be  the  law  of  the  State  whose  tribunals  and  oflicers  make 
the  arrest,  except  in  cases  for  extradition.  Thus,  in  the  course 
of  things,  it  must  happen  that  the  ofiense  charged  occurred  be- 
yond the  main  channel  of  the  river.  Technically,  this  is  in  the 
territorial  limits  of  the  opposite  State,  and  yet  arrest  and  pun- 
ishment is  made  and  enforced  under  the  laws  of  a  different  State 


kindred  case,  see  Mahler  «.  Norwich  Robinson,  6  McL.  355;  The  Robert 

&  New  York  Trans.  Co..  85  N.  Y.  353.  Fulton,  1  Paine,  631 ;   Mallett  v.  Bex- 

'Gilbert  v.  Moline  Water   Power  ter,  1  Curtis,  178;  Freeman  c.  Howe, 

and  Manuf 'g  Co.,  19  Iowa,  319,  333.  24  How.  450 ;  Buck  c.  Colbath,  3  Wall. 

2  Taylor  v.  Carryl,  20  How.  583;  834. 

Shelby  v.  Bacon,  10  How.  56;  Smith  » Herman's  Law  of  Estoppel,  p.  86, 

«.  Mclver,  9  Wheat.  532;    Ex  parte  §41. 


CONCURRENT    STATE    JURISDICTION.  339 

than  that  in  whose  actual  territorial  limits  the  crime  was 
committed. 

Again:  The  punishment  for  the  offense  may  not  be,  and  sel- 
dom is,  in  both  States  alike,  nor  the  limitation  of  time  in  which 
it  may  be  prosecuted.  Yet  the  State  whose  tribunals  first  get 
actual  jurisdiction  of  the  case,  by  arrest,  will  complete  the  trial, 
and  if  conviction  follows,  will  inflict  the  punishment.  Thus  the 
penalty  or  punishment  for  offenses  committed  on  rivers,  the 
jurisdictional  features  of  which  bring  them  within  the  jurisdic- 
tion of  State  courts,  as  contradistinguished  from  that  of  the 
Federal  courts,  over  highways  of  commerce,  may  be  greater  or 
less,  as  the  culprit  may  chance  to  first  come  under  the  actual 
jui'isdiction  of  one  or  the  other  of  such  adjoining  States. 

Secondly,  a  like  disparity  of  liability  may  occur  in  regard  to 
acts  of  commission  or  omission,  upon  such  common  water,  which 
are  by  statutes  of  one  or  both  such  States  made  actionable.  Take, 
for  instance,  the  statutory  liability  to  an  action  at  law  for  dam- 
ages, for  acts  of  negligence  or  wrong  resulting  in  the  death  of  a 
person.  In  one  State,  as  in  Illinois,  the  recovery  may  be  limited 
to  a  certain  sum,  beyond  which  a  jury  cannot  go,  in  finding  a 
verdict.  In  the  other,  as  in  Iowa,  the  finding  as  to  the  amount 
is  left  discretionary  in  the  jury,  under  the  evidence,  subject  only 
to  the  restraining  power  of  the  court,  in  granting  a  new  trial  if 
the  amount  found  be  excessive  under  the  evidence  and  the  rules 
of  law.  Again,  in  one  of  the  States  the  common  law  may  pre- 
vail, as  it  does  in  Illinois,  in  regard  to  the  liability  of  a  principal 
for  acts  of  negligence  of  a  servant  causing  an  injury  to  a  co- 
servant  of  the  same  common  employer,  while  in  the  other  State, 
a  statutory  provision,  as  really  is  the  case  in  Iowa,  gives  the 
action,  as  a  general  principle,  irrespective  of  the  relation  of 
servant  and  co-servant.  Yet,  under  all  these  circumstances,  and 
diversities  of  the  law,  the  State  first  obtaining  actual  jurisdiction 
of  WxQ  pai'ticular  case  will  carry  its  own  laws  into  effect  therein, 
irrespective  of  whether  the  occurrence  transpired  on  the  one  side 
or  the  other  of  the  main  channel  of  the  river,  Avliich  main  channel 
is  the  actual  territorial  boundary  line,  marking  the  territorial 
extent  and  territorial  jurisdiction  of  each  of  such  States. 

In  still  another  view  of  this  incongruity  of  the  law,  suppose 
an  ofi^ense  to  be  committed  by  the  common  act  of  several  per- 
sons, involving  equal  culpability.     It  is  a  well  known  rule  of 


340     JURISDICTION    OVER    STATE    BOUNDARY    RIVERS. 

law  that  such  persons  may  be  tried  separately ;  now  one  of  them 
falls  into  the  hands  of  justice  in  one  of  those  States,  and  another 
one  of  them,  at  the  same  time,  into  those  cf  the  opposite  State; 
they  are  both  tried  and  convicted.  By  the  law  of  one  Sfcite,  the 
convict  is  punishable  by  imprisonment;  in  the  other  State,  the 
same  offense  is  punishable  with  death,  and  the  convict  there  is 
executed.  Yet  these,  and  other  like  incongruities,  are  perhaps 
unavoidable,  as  the  laws  of  each  State  should  everywhere  have  a 
uniform  operation  in  its  own  courts,  in  reference  to  offenses, 
whether  committed  on  the  land  or  on  the  water.  Nor  is  the  dif- 
ficulty obviated  by  each  State  undertaking  to  administer  and 
enforce  the  law  of  the  other,  in  regard  to  occurrences  taking 
place,  or  crimes  committed,  on  the  other's  side  of  the  main 
channel  of  the  river;  for,  in  the  first  place,  a  State  cannot  admin- 
ister or  enforce  the  criminal  or  penal  laws  of  another  State  ;* 
and,  secondly,  if  it  could,  then  the  very  difficulty  is  revived 
which  the  concurrent  jurisdiction  is  intended  to  obviate:  that  is, 
the  necessity  of  ascertaining,  in  each  case,  on  which  side  of  the 
main  channel  the  trouble  occurred,  so  as  to  bring  the  case  within 
the  jurisdiction  of  the  laws  of  such  other  State.  Thus,  the  reason 
of  the  law  of  concurrent  jurisdiction  would  cease  to  exist;  and 
it  is  a  well  known  and  salutary  rule  of  law  that  when  the  reason 
of  the  law  ceases,  the  law  itself  ceases  to  exist,  and  therefore 
such  inter-State  jurisdiction  would  cease.  But,  by  reference 
to  the  origin  thereof,  it  will  be  seen  that  this  concurrent  juris- 
diction is  given,  over  the  river^  and  not  of  the  laws  of  the 
abutting  States.     Each  State  is  left  to  administer  its  own  laws.* 

But,  to  prosecute  this  subject  still  further:  Suppose  the  laws 
of  one  of  the  abutting  States  prohibit  and  punish  that  which  by 
the  laws  of  the  other  is  tolerated  —  take  for  instance  the  sale  of 
intoxicating  liquors,  or  the  keeping  of  disreputable  places  of 
resort,  and  persons  engage  in  such  business  in  boats  moving 
along  up  or  down  on  the  river,  at  the  probable  main  channel,  or 
at  or  along,  or  near  to,  either  of  the  shores,  as  convenience  or 
caprice  may  suggest.     Or,  suppose  that  while  prohibited  by  the 

'  The  Antelope,  10  Wheat.  66;  Sco-  «  3  U.  S.  Stat  at  Large,  428,  Chap, 

villa  V.  Canfield,  14  John.  338;  Pick-  LXVII.;  5  Stat,  at  Large,  742;  Iowa 

ering  v.  Fisk,  6   Vt.  102;    State  v.  L&wa,  Jiecision  o(  18G0,  Chap.  L  §  3, 

Knight,  Taylor  Law  and  Eq.  (N.  C.)  and  Code  of  Iowa,  1873,  Chap.  I.  §  3. 
65. 


CONCURKEN'x'    STATE    JURISDICTION.  3-il 

laws  of  one  of  these  States,  these  things  are  licensed  bj  or  under 
the  laws  of  the  other.  What,  then,  is  the  jurisdiction,  and  to 
what  extent  to  be  enforced?  Evidently  the  jurisdiction  must 
fail,  or  else  each  State  must  enforce  its  own  laws.  In  the  case 
here  cited,  of  State  v.  Mullen,  the  defendant  was  indicted,  con- 
victed and  punished  for  a  nuisance,  in  the  courts  of  Iowa,  under 
the  laws  of  that  State,  and  the  nuisance  was  abated,  which 
consisted  in  the  keeping  of  a  house  of  ill-fame  on  a  boat  on  the 
Mississippi,  movable  from  place  to  place,  but  temporarily  resting 
at  an  island  therein,  on  the  Illinois  side  of  the  main  channel  of 
the  river,  where  it  was  landed  for  repairs,  and  was  left  tempora- 
rily aground  by  the  receding  of  the  waters,  but  in  a  condition  to 
float  again  on  the  rising  of  the  river.  It  appearing  that  the  boat 
was  kept  as  a  movable  resort,  upon  the  river,  between  the  shore 
of  Illinois  and  the  shore  of  the  county  in  Iowa  wherein  the 
indictment  was  found,  and  that  its  location  as  thus  landed  was 
within  these  limits,  the  Supreme  Court  of  Iowa  held  the  juris- 
diction and  conviction  to  be  rightful.  Day,  J.,  who  delivered 
the  opinion  of  the  court,  says:  "The  boat  was  constructed,  not 
for  the  purpose  of  being  permanently  attached  to  the  soil,  but 
of  floating  upon  the  surface  of  the  river.  It  was  afloat  or 
aground,  as  the  waters  rose  or  receded.  When  it  settled  down 
upon  the  soil,  in  consequence  of  the  recession  of  the  water,  it 
did  not  become  real  estate.  It  rested  upon  no  foundations.  It 
had  no  fixed  location.  With  every  rise  of  the  river  it  floated. 
Hence,  it  was  on  the  river  in  a  sense  very  different  from  the  dam 
considered  in  the"  cases  of  Railroad  Co.  v.  Ward,^  and  Gilbert 
V.  The  Moline  Water  Poioer  and  Manufacturing  Company,^ 
*'  And,  if  on  the  river,  it  became  subject  to  the  jurisdiction  of 
this  State  concurrently  with  that  of  the  State  of  Illinois,  and  the 
judgment  of  the  court  was  right." 

So  it  doubtless  was.  But  suppose  the  State  of  Illinois  had, 
by  law,  licensed  this  very  concern  and  its  purposes,  to  be  so  used 
npon  the  river,  as  did  the  authorities  of  a  neighboring  State 
license,  at  one  time,  such  places  of  resort  on  the  land.  Query 
then?  What  would  have  been  the  result  thereof  upon  the  pros- 
ecution in  the  Iowa  case  above  referred  to?  Would  such  a  defense 
have  been  valid?    And,  if  so,  would   such  validity  cover  the 

»  2  Black,  485.  « 19  Iowa,  819. 


342     JURISDICTION    OVER    STATE    BOUNDARY    RIVERS. 

whole  river,  from  shore  to  shore,  or  only  that  part  which  is  on  the 
Illinois  side  of  the  main  channel?  If  the  former:  that  is,  if  valid 
from  shore  to  shore,  then  coticurrent  jurisdiction  on  that  sub- 
ject no  longer  exists,  and  the  jurisdiction  of  Illinois  is,  in  that 
respect,  exclusive,  unless  each  administers  its  own  laws  irre- 
spective of  the  other  or  of  its  laws.  If  the  latter:  that  is,  if  valid 
only  on  that  part  of  the  river  which  is  on  the  Illinois  side  of 
the  main  channel,  then  the  very  difficulty  arises,  again,  which  it 
was  the  purpose  of  concurrent  jurisdiction  to  obviate,  to-wit: 
the  difficulty,  in  judicial  trials,  of  ascertaining  the  juxtaposition 
of  the  I0CU8  in  quo  to  that  of  the  main  channel  of  tlie  river.  So 
questions  may  arise  out  of  legislation  of  an  economical  character, 
the  violation  of  which  itself  involves,  in  no  degree,  any  moral 
turpitude.  As,  for  instance,  the  prohibition  of  the  taking  of 
fish  with  nets  or  seines,  in  such  a  river,  or  at  certain  seasons  of 
the  year,  enacted  by  one  of  such  States,  while  the  other  declares 
by  law  the  right  of  free  fishery  therein.  But,  these  remarks 
being  merely  speculative,  it  is  not  our  purpose  to  extend  them 
further,  nor  are  we,  in  the  absence  of  any  decisions  in  that 
respect,  authorized  to  lay  down  any  rule,  or  express  any  opinion, 
on  the  subject.  It  is  nevertheless  true,  however,  that  all  these 
and  many  other  legal  questions  are  liable  to  arise  out  of  such 
concurrent  jurisdiction,  but  we  do  not  think  that  that  establishes 
a  good  reason  why  it  should  not  exist. 

So,  in  regard  to  contracts,  which  in  many  cases  depend  on  the 
place  of  the  contract  fur  their  force  and  validity  and  meaning. 
Contracts  may  be  legal  and  binding  if  made  in  one  of  those 
States  which,  if  made  in  the  other  one,  would  be  illegal  and  void, 
and  the  contract  would  be  enforced  or  not  just  as  the  question  of 
enforcement  chanced  to  come  before  the  tribunals  of  one  or  the 
other  of  the  States  thus  having  concurrent  jurisdiction  over  the 
place  where  it  was  made;  for  jurisdiction  is  matter  of  law,  as 
well  as  of  practical  administration  thereof.  In  the  case  last  sup- 
posed, the  validity  of  the  contract  must  be  tested  by  the  laws  of 
one  or  the  other  of  those  States,  if  it  be  not  fixed  by  the  evidence 
on  which  side  of  the  line  the  bargain  was  made,  and  it  therefore 
follows  most  reasonably  that  each  State  would  enforce  its  own. 

In  the  case  of  The  State  v.  Mullen^  the  Supreme  Court  of 
Iowa  hold,  that  jurisdiction  over  offenses  committed  on  the  Mis- 
sissippi anywhere  either  on  the  one  or  the  other  side  of  the  main 


CONCUREENT    STATE    JURISDICTION.  343 

channel  thereof,  in  front  of  any  county  of  the  State  which  abuts 
upon  said  river,  attaches  in  the  courts  of  said  county  of  proper 
jurisdiction  otherwise  to  try  the  same  (unless  such  jurisdiction 
is  exclusive,  in  courts  of  the  United  States).  ^  A  like  concurrent 
jurisdiction  of  Wisconsin  and  Minnesota  exists  on  the  Missis- 
sippi river,  where  it  is  a  boundary  between  these  two  States.^ 
The  Supreme  Court  of  Wisconsin,  in  a  trial  of  a  charge  of 
murder,  hold  on  error  a  similar  principle  to  that  of  the  Iowa 
courts  in  The  State  v.  Mullen ^'  that  is,  that  jurisdiction  of 
offenses  committed  on  the  said  river  in  front  of  any  county,  is 
vested  in  the  courts  of  such  county  competent  to  try  such  offenses 
if  committed  in  its  borders  on  the  land,  and  tliis,  too,  regardless 
as  to  whether  the  act  be  committed  on  the  one  side  or  other  of 
the  main  channel  of  the  river. ^ 

As  a  tangible  boundary  of  a  Territorial  character  between 
Kentucky  and  Indiana,  low  water  mark  on  the  Indiana  side  of 
the  Ohio  river  is  the  true  line;  but  said  States  of  Kentucky  and 
Indiana  possess  concurrent  jurisdiction,  civil  and  criminal,  over 
the  whole  river  where  said  States  possess  the  opposite  shores.* 
State  laws  giving  a  right  of  action  for  wrongful  acts  causing  the 
death  of  a  person,  may  be  enforced  in  personal  actions  of  a  com- 
mon law  nature,  within  such  concurrent  jurisdictions,  without 
infringing  upon  the  right  of  Congress  to  regulate  commerce,  or 
on  the  maritime  jurisdiction  of  the  United  States. ^  Where  such 
concurrent  jurisdiction  exists,  judgment  in  one  State  is  a  bar  to 
an  action  for  the  same  cause  in  the  other  State,  and  if  judgment 
should  be  rendered  in  both  States,  yet  satisfaction  of  one  is  satis- 
faction of  the  other.  There  can  be  but  one  satisfaction. ^  The 
river  being  entirely  within  the  boundary  of  Kentucky,  does  not 
affect  the  concurrent  jurisdiction  of  the  two  States  thereon,  in 
the  face  of  the  express  grant  thereof.'  It  is  no  defense  to  such 
an  action  that  a  sum  of  money  is  received  on  a  life  insurance  of 
the  deceased,  where  suit  is  for  injury  causing  death. ^     Such  a 

1  State  V.  Mullen,  35  Iowa,  199,  203.  »  Sherlock  v.  Ailing,  44  Ind.  194. 

2  State  u.  Cameron,  2  Pinn.  490.  «  Sherlock  «.  Ailing,  44  Ind.  184, 
» Ibid.,  p.  495.                                         197;  8.  G.,  3  Otto,  399. 

<  Sherlock  v   Ailing,  44  Ind.  184,  '  Ibid. 

194;    Handly  «.  Anthony,  5  Wheat.  ^  Railroad  Co.  ».  Barron,  5  Wall.  90, 

'374;  McFall  v.  The  Commonwealth,      105;  Althorf  «.  Wolfe,  22  N.  Y.  355. 
2  Met.  (Ky.)  394 ;  Carlisle  «.  The  State, 
32  Ind.  55. 


344     JURISDICTION    OVER   STATE    BOUNDARY    RIVERS. 

defense  would  subrogate  the  wrongdoer  to  tlie  benefit  of  the 
insurance  to  enable  Lim  to  more  easily  pay  for  the  result  of  his 
own  wrong. 

The  Indiana  sttitute  declares  that  when  the  death  of  one  is 
caused  by  the  wrongful  act  or  omission  of  another,  the  personal 
representatives  of  the  former  may  maintain  an  action  therefor 
against  the  latter,  if  the  former  might  have  maintained  an  action 
had  he  lived,  against  the  latter  for  the  same  act  or  omission. 
The  action  must  be  commenced  within  two  years.  The  damages 
cannot  exceed  five  thousand  dollars,  and  must  inure  to  the  exclu- 
sive benefit  of  the  widow  and  children,  if  any,  or  next  of  kin,  to 
be  distributed  in  the  same  manner  as  personal  property  of  the 
deceased. 

Under  this  statute,  the  Supreme  Court  of  Indiana  hold,  that 
an  action  lies  for  a  wrongful  act  causing  death,  occurring  en  the 
Ohio  river,  under  the  concurrent  jurisdiction  of  Indiana  and 
Kentucky,  when  occurring  between  opposite  shores  of  said  States, 
and  tliat  the  fact  that  the  statute  of  Kentucky  on  the  same  sub- 
ject might  be  different  from  that  of  Indiana,  would  not  militate 
against  such  concurrent  jurisdiction. ^ 

An  interesting  inter-State  case  is  the  case  of  Stillman  v. 
White  Hock  Manuf.  Co.^^  growing  out  of  milling  interests  on 
the  Pawcatuck  river.  This  river  is  the  boundary  line  between 
Connecticut  and  Rhode  Island.  The  actual  boundary  being  the 
center  of  the  river. ^  The  mills  of  the  parties  were  situated  on 
opposite  sides  of  the  river  near  to  each  other,  and  were  botli  sup- 
plied with  water  power  from  the  same  stream.  The  one  party, 
by  means  of  a  canal,  diverted  a  larger  portion  than  their  undi- 
vided share  of  the  water,  and  an  injunction  was  granted  to 
restrain  the  unjust  interference.  As  neither  party  held  land  on 
the  opposite  side  of  the  river  opposite  his  own  establishment,  no 
action  would  lie  for  the  interference  with  the  realtxj  in  cutting 
the  canal  on  the  other  party's  own  land.''  Yet  such  diversion  of 
the  water  was  the  cause  of  injury  to  the  other  party  calling  for  a 
remedy,  whether  regarded  as  done  to  the  soil  or  freehold,  or  to 
some  sort  of  corporal  easement  of  the  injured  party,  in  his  right 

'  Sherlock  ».  Ailing,  44  lad.  184;  /S.  <  Stillman  ».  White  Rock  Manf.  Co.,^ 

C7.,  3  Otto,  399.  8  Wood.    &    M.  538,  543;   Tyler  «.' 

«  3  Wood.  &  M.  538,  541.  Wilkinson,  4  Mas.  397. 
» Ibid. 


CONCURRENT    STATE    JURISDICTION.  345 

to  the  natural  flow  of  the  water  J  The  two  localities  were  not 
only  governed  by  laws  of  different  States,  but  were  situated  in 
different  circuits  of  courts  of  the  United  States  administering 
these  laws.  The  court  (Woodbury,  Justice,)  held,  the  interest 
of  the  parties,  to  be  a  corporeal  easement  or  right  to  an  undivided 
half  of  the  water  of  the  whole  stream,  or  tenancy  in  common 
therein,  and  that  if  eitlier  party  took  or  diverted  more  than  the 
half,  such  use  or  diversion  thereof  would  be  an' injury,  entitled  in 
law  to  redress  by  some  sort  of  proceeding. ^  In  such  cases  the 
injury  is  regarded  as  committed  in  waters  possessed  beyond  the 
center  of  the  stream  ;3  as  such  interest  may  exist  in  water  and 
in  its  use.*  The  first  and  direct  injury,  say  the  court,  in  this 
case,  is  to  the  easement  and  consequent  rights  of  the  injured 
party  existing  beyond  the  center  of  the  stream.  The  next,  and 
which  is  a  consequential  injury,  is  to  the  mills  and  lands  adjoining 
the  stream,  before  reaching  the  center;  for  this,  too,  a  remedy  is 
due,  just  as  a  right  of  way  on  land  in  one  State,  to  property  in 
another,  is  an  interest  situated  in  the  State  where  such  right  of 
way  is,  and  the  injury  thereto  may  therein  be  prosecuted.  If  a 
remedy  be  pursued  in  the  United  States  court,  it  must  be  in  that 
State  wherein  the  injury  is  committed  (where  the  canal  is  dug) 
and  the  owner  resides,  as  an  injunction  in  the  other  State  could 
not  be  executed,  and  as  so  far  as  the  cause  of  the  injury  is  con- 
cerned, the  proceeding  is  partly  in  rem,  and  must  be  there  abated 
if  at  all.s     Relief  was  granted  by  issuing  an  injunction. 

Where  the  center  of  a  river  is  the  boundary  line  between  two 
States,  permanent  erections  of  value  therein  in  either  State,  on 
either  side  of  such  line,  are  taxable  in  the  State  wherein  they  are 
erected.  Thus,  where  the  center  of  the  Delaware  river  is  the 
boundary  line  between  the  States  of  Pennsylvania  and  New  Jer- 
sey, the  piers  and  permanent  bridge-work  of  a  bridge  across  the 
river  was  held  taxable;  thus  so  much  of  this  abutment  and 
bridge  as  was  on  the  New  Jersey  side  of  said  boundary  was  tax- 
able in  New  Jersey  as  real  estate,  irrespective  of  the  capital  stock. « 

I  StilUnan  v.  Wliite  Rock  Manf.  Co.,  ^  gtillman  ■».  White  Rock  Manf.  Co., 

3  Wood.  &  M.  538,  543 ;  Cook  v.  Hull,  3  Wood.  &  M.  538,  544. 

3  Pick.  270.  *  Bullen  v.  Runnels,  2  N.  H.  255, 259. 

^  Stillman  v.  White  Rock  Manf.  Co.,  ^  Stillman  v.  White  Rock  Manf.  Co., 

3  Wood.  &  M.  538,  543;   Angell  on  3  Wood.  &  M.  546, 

Watercourses,  Sees.  5-9.  *  State  v.  Metz,  5  Dutch.  128. 


34G     JURISDICTION   OVER    STATE    BOUNDARY    RIVERS. 

The  boundary  of  the  State  of  New  York,  as  between  New 
York  and  New  Jersey,  is  at  the  low  water  mark,  at  the  New  Jer- 
sey shore  of  tlie  Hudson  river.  The  jurisdiction  of  New  York 
extends  to  said  boundary  and  is  plenary  both  in  civil  and  criminal 
matters.  1  This  jurisdiction  enabled  the  courts  of  New  York, 
for  preservation  and  protection  of  the  harbor  and  river,  in  the 
bay  of  New  York,  to  restrain  persons,  by  injunction,  from  filling 
in  and  forming  land  in  the  said  river  and  harbor,  at  the  New 
Jersey  shore.' 

Contracts  of  aifreightment  or  calriage  to  be  performed  by  a 
corporate  common  carrier,  partly  in  crossing  a  common  boundary 
river  of  two  States,  but  mainly  to  be  performed  within  the  State 
wherein  the  carrier  is  incorporated,  are  to  be  construed  as  to  the 
obligation  of  performance  by  the  laws  of  the  latter  State.'  In 
the  case  here  cited*  the  contract  was  made  at  the  wharf  oi^  the 
Pennsylvania  side  of  the  Delaware  river,  for  transportation  of 
baggage  over  the  defendant's  railroad,  from  thence  across  the 
Delaware  and  through  New  Jersey  to  Atlantic  City.  The 
supreme  court  of  Pennsylvania,  Sharswood,  J.,  say:  "As  the 
contract  relied  on  in  this  case,  as  the  ground  of  the  liability  of 
the  defendants,  was  to  be  performed  in  the  State  of  New  Jersey, 
we  must  look  to  the  law  of  that  State  to  determine  the  extent  of 
that  liability.  It  is  no  answer  to  say  that  part  of  the  undertak- 
ing was  to  carry  the  plaintiff  and  his  baggage  across  the  Dela- 
ware to  Camden,  and  so  in  part  within  the  limits  of  Pennsyl- 
vania. That  river  is  conterminous  between  Pennsylvania  and 
New  Jersey,  and  the  inhabitants  of  both  have  equal  rights  of 
navigation  and  passage.  *  *  *  It  was  by  virtue  of  their 
franchise  as  a  corporation,  derived  from  the  State  of  New  Jersey, 
that  the  defendants  made  the  contract.  Nor  would  it  make  any 
diiference  if  it  appeared  that  the  trunk  was  stolen  or  lost  at  the 
wharf  in  Philadelphia,  of  which  there  is  no  evidence.''^ 

>  People  V.  Central  R  R,  of  New  Co.,  83  Penn.  St.  316;  S.  G.,  15  Am. 
Jersey,  48  Barb.  478.  Ry.  Reps.  421. 

^  Ibid.  *  Ibid. 

»  Brown  v.  Camden  &  Atlantic  R.  R.         "83  Penn.  St.  816 ;  8.  C,  15  Am.  Ry. 

Reps.  431,  424. 


POWER    OF    STATES    TO    LICENSE    FERRIES.  347 


CHAPTER   XXXV. 

POWER  OF  THE  STATES  TO  LICENSE  INTER-STATE  FERRIES. 

I.    The  Power  to  License  is  a  Police  Power. 
II.    The  Extent  thereof  and  Effect  op  its  Exercise. 

I.     Power  to  License  is  a  Police  Power. 

Nice  questions  arise  in  regard  to  the  grant  of  ferry  privileges 
across  rivers  and  other  waters  which  are  a  common  boundary 
between  two  States. 

First.  As  to  how  far  this  species  of  intercourse  comes  within 
the  jurisdiction  of  Congress  and  the  Federal  courts. 

The  Power  is  in  the  State.  It  is  well  settled  that  the  granting 
of  a  franchise  or  license  to  keep  a  ferry,  whether  across  waters 
wholly  within  a  State  or  across  waters  which  are  a  boundary 
between  two  States,  is  of  the  police  powers  of  tlie  States  which 
has  never  been  parted  with  or  surrendered  to  the  National  gov- 
ernment, but  has  always  been  exercised  by  the  several  States; 
and  that  the  exercise  thereof,  in  reference  to  mere  matter  oi  fer- 
riage from  shore  to  shore,  does  not  come  within  or  infringe 
upon  the  constitutional  grant  to  Congress  of  power  "  to  regulate 
commerce  with  foreign  nations  and  among  the  several  States, 
and  with  the  Indian  tribes,"  nor  does  it  infringe  the  provisions 
of  the  ordinance  of  1787  in  regard  to  the  free  navigation  of  the 
Mississippi  river  and  its  navigable  waters.  The  authority  of  the 
several  States  over  this  subject  is  but  part  and  parcel  of  that 
municipal  and  police  power  of  the  several  States  of  making 
inspection  laws,  health  laws  and  quarantine  regulations,  and  laws 
for  the  regulations  of  local  matters  and  of  commerce  wholly 
internal  of  the  State;  "all  of  which,"  in  the  language  of  Chief 
Justice  Marshall,  in  Gihhons  v.  Ogden,  "  can  be  most  advan- 
tageously exercised  by  the  States  themselves." i 

'  9  Wheat.  1;  Conway  v.  Taylor,  1  goire,  16  How.  534;  Chilvers  v.  The 
Black,  603,  633,  635;  Fanning  c.  Gre-      People,   11   Mich.  43;    Chiapella  v. 


848  POWER    OF    STATES    TO    LICENSE    FERRIES. 

But  its  Exercise  may  not  Interfere  with  Commerce.  Should 
a  State,  in  the  exercise  of  any  of  these  powers,  encroach  upon 
the  commercial  powers  of  the  national  government,  it  would 
become  the  duty  of  the  United  States  supreme  court  to  control 
or  annul  such  encroachment. ^  But  the  possibility  of  abuse  in 
its  exercise  is  no  argument  against  the  existence  of  that  power, 
which  being  first  openly  asserted  in  Gibbons  v.  Ogden^  aupi'a, 
has  not,  as  was  said  by  Justice  Swayne  in  Conway  v.  Taylor's 
Executors^  since  been  questioned  in  any  adjudicated  ease,  but  is 
repeatedly  aftirmed  by  both  State  and  United  States  courts.^  It 
being  thus  settled,  not  only  by  the  highest  national  court  but  by 
a  general  concurrence  of  opinion  of  the  State  courts,  that  this 
power  of  ferries  and  ferry  franchises  is  one  of  a  local  and  police 
nature  appertaining  to  the  several  States  within  their  own  proper 
jurisdictional  limits,  the  extent  of  its  legitimate  exercise  becomes 
now  the  next  subject  of  inquiry. 

II.    The  Extent  Thereof  and  Effectt  of  ns  Exercise. 

When  the  stream,  the  shores  thereof,  and  the  locality  upon 
which  this  power  of  the  States  is  brought  to  bear  are  situated 
wholly  within  the  territorial  limits  of  a  State,  then  there  can  be 
no  question  as  to  the  power  in  the  State  to  grant  such  franchises 
and  regulate  the  same  by  law.  But  when  the  water  to  be  ferried 
over  is  the  boundary  line  between  two  States,  by  reason  whereof 
the  opposite  shores  thereof  are  within  the  territorial  jurisdiction 
of  different  States,  then,  although  the  power  still  exists  in  each 
of  said  States,  yet  the  question  arises  as  to  the  extent  of  that 
power,  and  in  what  manner  it  may  be  exercised.  This  we  will 
now  consider. 

Laws  have  no  Extra- Territorial  Force.  It  is  well  settled  that 
the  laws  of  a  State  have  no  extra-territorial  force,  and  it  there- 
fore results  therefrom  that  grant  of  a  franchise  by  a  State  law,  or 
in  virtue  of  a  State  law,  cannot  of  its  own  mere  force  confer 
extra-territorial  privileges,  or  extend  the  legal  existence  of  such 
franchise  into  the  limits  of  another  State  or  territorial  jurisdition.  * 

Brown,  14  La.  Ann.  189;  Marshall  ».      Bridge  Co.,  13  How.  519;  Conway  «. 
Grimes,  41  Miss.  27;  Columbia  D.  B.      Taylor,  1  Black,  603,  634. 
Co.  V.  Geisse,  38  N.  J.  Law.  39.  «  Conway  ©.Taylor,  1  Black,  603, 634. 

'Pennsylvania   -o.   The   Wheeling         'Weld  ».  Chapman,  2  Iowa,  524; 

Blauchard  v.  Russell,  13  Mass.  1. 


EFFECT    OF    ITS    EXERCISE.  349 

The  Grant  is  Local.  It  follows,  from  these  principles,  that  a 
grant  of  a  ferrj  franchise  by  a  State  over  a  river  which  is  a  com- 
mon boundary  between  such  State  and  another  State  confers  only 
the  right  to  transport  persons  and  tilings  from  the  shore  of  the 
State  making  the  grant  to  the  shore  and  landing  of  such  other 
State;  but  it  need  not  confer  the  right  to  there  land,  for  that 
.  right  exists  without,  as  to  all  public  landings  ;i  and  not  the  right 
to  there  take  persons  and  passengers  aboard  and  transport  them 
back  across  such  water  course.  ^ 

It  is  a  Right  to  Carry,  and  not  to  Land.  The  Latter  Exists 
without  the  G-rant.  "  A  ferry  is  in  respect  to  the  landing  place, 
and  not  of  the  water.  The  water  may  be  to  one,  and  the  ferry 
to  another."^  The  franchise  is  local.  "  An  estate  in  such  a 
franchise,  and  an  estate  in  land  rest  upon  the  same  principle."* 
Being  thus  local,  if  the  riffht  conferred  be  in  reference  to  a  water 
which  is  a  boundary  between  two  States,  then  the  only  right  that 
passes  is  to  take  passengers  or  property  from  the  shore  in  the 
State  where  the  grant  is  made.  The  grant  is  from  that  shore  or 
landing  place,  and  not  to  the  landing  in  the  opposite  State.  And 
so  if  a  ferry  franchise  be  granted  in  the  opposite  State,  it  is  a  grant 
from  the  shore  or  landing  in  such  State,  and  not  a  grant  of  the 
right  alao  of  landing  in  the  other  State. ^  The  right  of  landing 
in  public  places  appertains  to  all  water  crafts,  independent  of 
special  authority  or  privileges.^ 

The  enrollment  or  licensing  of  a  boat  under  the  United  States 
laws,  for  the  coasting  trade,  does  not  alter  the  case,  as  above 
stated,  in  regard  to  a  right  to  ferry.  It  confers  no  such  right.' 
As  we  have  seen,  a  ferry  license  or  franchise  has  reference  to  the 
land  of  the  river  shore  in  the  State  where  the  license  is  obtained, 
and  to  \)[i&  jparticular  place  of  the  shore  designated  in  the  grant. 

J  Conway  ».  Taylor,  1  Black,  603,  of  Hudson  Co.  v.  State,  4  Zab.  718 ; 

633,  634.  Phillips  v.  Bloomington,  1  G.  Greene. 

2  Conway  ®.  Taylor,  1  Black,  603;  498;   Memphis  «.   Overton,  3  Yerg. 

Welti  V.  Chnpman,  2  Iowa,  534;  Koss  390;  Bowman  ®.  Wathen,  3  McL.  377. 

».  Page,  6  Ham.  (Ohio,)  166 ;  Soraer-  ■*  3  Kent.  *459 ;  Conway  ».  Taylor, 

ville  V.   Wimbish,  7  Gratt.  305,  230;  1  Black,  603,  633. 

Memphis  v.  Overton,  3  Yerg.  387.  '  Conway  n.  Taylor,  1  Black,  603, 

3 13  Viner's  Ab.  208a;   Conway  v.  631. 

Taylor,!  Black,  603,630;  People  v.  »  Ibid. 

Babcock,  11  Wend.  587;  Fanning©.  'Ibid, 
Gregoire,  16  How.  524;  Freeholders 


■350  POWER    OF    STATES    TO    LICENSE    FERRIES. 

It  neither  confers  nor  restricts  any  right  of  passing  over  the 
•water.  It  is  not  a  grant  of  the  water,  or  of  the  use  thereof;  and 
though  restricted  to  a  particular  locality  of  the  river  shore,  there 
is  no  restriction  as  to  how  ftir  up  or  down  the  stream  the  craft 
may  go,  or  as  to  the  route  to  be  pursued,  after  leaving  the  land- 
ing ]>lace  of  the  grant,  or  in  approaching  the  same;  nor  does  the 
validity  of  the  franchise  depend  on  the  privilege  of  landing  at 
the  shore  in  the  0])posite  State.  It  is  a  complete  right  when 
granted  by  the  authorities  of  one  State,  and  has  reference  merely 
to  the  right  of  taking  and  landing  at  the  point  of  land  therein 
•designated  in  the  license.  1  Hence  it  is,  that  in  law  the  owner 
of  the  soil  of  the  landing  place  is  deemed  to  have  the  preference 
for  such  a  grant.  It  is  so,  because,  as  hereinbefore  stated,  "  a 
ferry  is  in  respect  of  the  landing  place,  and  not  of  the  water."^ 
To  create  such  a  franchise,  the  concurrent  action  of  the  two  States 
is  not  necessary,  but  each  may  make  such  from  its  own  shore,  a 
violation  of  which  is  restrainable  by  injunction.' 

So,  in  Kew  York,  the  courts  there  hold  that  power  exists  in 
that  State  to  establish  and  license  ferries,  by  law,  across  the 
Niagara  river,  from  tlie  shore  in  that  State,  and  that  to  run  a 
ferry  there  without  a  license  is  a  violation  of  the  statute  law  ot 
New  York  in  relation  to  ferries.  It  is  held  to  be  none  the  less 
BO,  that  the  State  authority  and  jurisdictions  extends  only  to  the 
middle  of  the  river.  The  power  conferred  is  to  ferry  from  the 
American  shore.  As  to  the  right  of  landing  on  the  Canada  side, 
the  State  of  New  York  has  nothing  to  do  with  that.*  It  was 
objected  that  such  exercise  of  authority  by  the  State  conflicted 
"svith  the  authority  of  Congress  to  regulate  commerce  with  for- 
eign States;  but  the  court  held  that  it  was  a  domestic  right 
in  the  State,  always  conceded  by  the  national  to  the  State 
governments.'* 

The  Power  is  a  Municipal  One.  The  grant  of  ferry  franchises, 
as  a  means  of  intercommunication  over  streams  between  States, 
is  not  vested  in  the  United  States  by  the  Constitution,  but  is 
municipal  in  its  character,  and  is  under  State  control,  both  as  to 

»  Conway  «.  Taylor,  1  Black,  603;         »  Conway  n.  Taylor,  1  Black,  603, 
Columbia  Dela.  Bridge  Co.  t.  Geisse,      629,  630. 
88  N.  J.  39 ;  Newport  t.  Taylor,  16         »  Ibid. 

B.  Mon.  699.  ♦  People  v.  Babcock,  11  Wend.  587. 

»Ibid. 


EFFECT  OF  ITS  EXERCISE.  351 

the  making  of  tlie  grant  and  the  regulation  of  its  exercise  ;i  and 
although  the  right  granted  may  not  authorize  the  party  to  land 
in  another  State,  or  to  take  passengers  therefrom,  yet  it  is  a  grant 
within  the  jurisdiction  of  the  State  making  it,  and  extends  to  the 
limits  of  such  jurisdiction.  Beyond  that  the  power  of  the  State 
making  the  grant  cannot  go.^ 

Navigable  Waters  and  Public  Landings  are  Free.  But  irre- 
spective of  the  grant  of  the  franchise,  the  navigable  inter-State 
waters  are  free  for  the  purposes  of  intercourse  and  navigation ; 
and  so,  also,  are  the  public  places  of  landing,  a  species  of  ease- 
ment free  to  all  citizens  of  the  several  States, ^  They  are  thus 
free,  not  only  on  general  principles,  but  are  more  especially  so 
under  the  Constitution  of  the  United  States,  which  secures  to 
the  citizens  of  the  States  all  the  privileges  and  immunities  of 
citizens  of  each  State.* 

The  exercise  of  a  ferry  privilege  across  a  boundary  river  be- 
tween two  nations  or  States  that  are  at  war  is  a  contraband  act, 
and  for  the  suppression  thereof  by  military  force  no  civil  action 
can  be  maintained, ^  The  municipal  regulations  of  a  State  for 
establishing  ferries  and  bridges  over  waters  forming  county 
boundaries  do  not  apply  to  streams  which  are  boundaries  between 
2iations  or  States.^  Subsequent  to  the  occurrence  for  which  the 
action  above  referred  to  was  brought,  an  act  of  the  Texas  legis- 
lature had  been  passed  in  reference  to  bridges  and  ferries  across 
international  streams.  This  latter  act  of  legislation  provides  for 
a  system  of  reciprocity  in  respect  to  such  streams;  but  the  State 
cannot  give  a  valid  privilege  or  franchise  beyond  its  boundaries, 
and  these  boundaries  are  the  middle  of  the  stream,  if  not  other- 
wise stipulated,  in  cases  where  a  river  or  water  is  the  boundary 
between  two  nations  or  States,  as  is  the  Rio  Grande,  between  the 
United  States  and  Mexico;  and,  as  a  consequence,  between  the 
State  of  Texas  and  Mexico,  along  the  same  river,  so  far  as  bor- 
dered on  by  the  State  of  Texas.'' 

'State  V.  Freeholders  of  Hudson  '  Memphis  c.  Overton,  3  Yerg.  387. 

Co.,  3  Zab.  206, 213 ;  Memphis  v.  Over-  ♦  Ibid, 

ton,  3  Yerg.  387,  •  Ogden  v.  Lund,  11  Tex,  688,  691. 

^  State  V.  Freeholders  of  Hudson  •  Ibid. 

Co.,  3  Zab.  203.  ■»  Ibid. 


852  REMOVALS   TO   UNITED    STATES   COUBT. 


CHAPTER   XXXVI. 

EEM0VAL8   TO    UNITED    STATES   COUBT. 

I.    When  the  Proceeding  is  Had  for  Acts  Done  Under  Authority 

OF  THE  United  States. 
II.    Removals  Under  the  Act  of  Congress  of  March  8d,  1875. 

III.  The  Right  of  Removal  Cannot  be  Limited  or  Bargained  Awat. 

IV.  Citizenship  can  Only  be  Disputed  by  Plea  in  Abatement. 
V.    Citizenship,  How  Stated  by  Corporation  Plaintiff. 

VI.    United  States  Court  is  the  Judge  of  the  Cause  for  Removal. 
VII.    When  State  Court  Refuses  to  Aux)w  Removal. 
VIII.    Removal  of  National  Corporation. 

I.      WlIEN   THE    PbOCEEDIXG   IS    HaD   FOR  AcTS   DoNE   UnDER 
AuTUOfilTY   OF   UxITLD    StATES. 

When  an  action,  suit  or  other  proceeding  is  commenced  in  a 
State  court  against  an  officer  of  the  United  States,  or  other  per- 
son, for  or  on  account  of  an  act  done  under  the  United  States 
revenue  laws,  or  under  color  thereof,  or  on  account  of  title,  right 
or  authority  set  up  by  such  officer  or  person,  the  defendant  may, 
any  time  before  trial,  on  petition  to  the  United  States  circuit 
court  for  the  district,  setting  forth  the  particulars  thereof,  veri- 
fied by  affidavit,  and  accompanied  by  a  certificate  of  an  attorney 
or  counselor  at  law  of  the  district,  showing  that  he  has  examined 
into  the  particulars  of  the  case  and  believes  the  petition  to  be 
true,  ma}'  have  tlie  cause  docketed  in  said  circuit  court  of  the 
United  States,  and  have  a  writ  of  certiorari  issued  by  the  court, 
if  in  term,  and  by  the  clerk  if  in  vacation,  directed  to  such  State 
court,  requiring  such  State  court  to  send  to  such  circuit  court  of 
the  United  States  the  proceedings  in  the  cause  and  to  stay  further 
proceedings  in  the  State  court,  and  on  delivery  of  the  writ  to  tiie 
State  court  the  suit  or  proceeding  is  deemed  removed,  and  all 
further  proceeding  in  the  cause  in  the  State  court  is  null  and 
void.^ 

'1  Brightly's  Dig.  of  Laws,  128,  of  U.  S.  1874.  §  643.  See,  further, 
129 ;  State  v.  Circuit  Judge,  33  Wis.  Dennistoun  v.  Draper,  5  Blatch.  836 ; 
127 ;  4  U.  S.  Stat  at  Large,  633 ;  R  S.      Wood  v.  Mathews,  3  Blatch,  370. 


UNDER    ACT    OF    COT^GRESS.  353 


II.     Eemovals  Under  the  Act  of  Congress  of  March  3,  1875. 

In  a  suit  of  a  civil  nature  in  law  or  equity  brought  in  any 
State  court,  involving  a  matter  in  dispute  which,  exclusive  of 
costs,  exceeds  the  sum  or  value  of  five  hundred  dollars,  and  aris- 
ing under  the  constitution,  laws  or  treaties  of  the  United  States; 
or  in  wliich  the  United  States  are  plaintiff  or  petitioner;  or  in 
which  there  is  a  controversy  between  citizens  of  different  States; 
or  a  controversy  between  citizens  of  the  same  State  claiming  lands 
under  grants  of  different  States;  or  a  controversy  between  citi- 
zens of  State  and  foreign  States,  citizens  or  subjects,  either  party 
thereto  may  have  such  suit  removed  for  trial  into  the  circuit 
court  of  the  United  States  for  the  district  wherein  it  is  pend- 
ing.^ And  if  there  be  several  persons  party  defendant  or  plain- 
tiff, either  one  or  more  may  enforce  the  rights  of  removal,  if 
the  matter  can  be  properly  determinable  between  them.^ 

Removal,  How  Effected.  Such  removal  is  effected  by  filing  a 
petition  in  the  State  court,  at  or  before  the  term  at  which  the 
suit  should  be  first  tried,  and  before  the  trial  thereof,  for  the 
removal  of  the  suit  into  the  circuit  court  of  the  United  States  of 
the  district  where  such  suit  is  pending,  and  by  making  and  filing 
therewith  a  bond  with  good  and  sufficient  security  for  the  enter- 
ing into  said  circuit  court  on  the  first  day  of  its  next  session,  a 
copy  of  the  record  of  the  suit,  and  for  payment  of  all  costs  that 
may  be  awarded  by  said  circuit  court,  if  said  circuit  court  shall 
hold  the  removal  wrongful  or  improper,  and  also  for  the  entering 
into  special  bail  in  said  suit  in  said  circuit  court,  if  special  bail 
be  requisite  in  the  original  proceeding  in  the  State  court.  There- 
upon the  State  court  is  to  accept  such  petition  and  bond  and  pro- 
ceed no  further.  Such  is  the  process  of  removal  when  the  suit 
is  for  a  money  claim  or  demand. 

When  Title  to  Land  is  Concerned.  If  the  suit  be  one  in 
which  the  title  to  land  is  concerned,  and  the  parties  be  citizens 
of  the  same  State,  and  the  matter  in  suit  exceeds  the  sum  or 
value  of  five  hundred  dollars,  exclusive  of  costs,  the  sum  or 
value  is  to  be  made  to  appear,  and  one  or  more  of  the  defend- 

1  Session  Act  of  Congress,  March  3,  *  Session  Act  of  Congress,  March  3, 

1875,  §  3;  Session  Acts  of  Congress,  1875,  §  2;  Session  Acts  of  Congress, 

1874-5,  470.  1874-5,  470. 
23 


354  REMOVALS    TO    UNITED    STATES   COURT. 

ants  mast  make  affidavit,  if  required  by  the  court,  that  the  de- 
fense will  rely  upon  a  right  or  title  to  the  land  under  a  grant 
from  a  State,  and  shall  produce  the  same,  or  an  exemplification 
thereof,  (if  the  loss  of  jiublic  records  shall  not  have  put  its  pro- 
duction out  of  the  parties'  power,)  and  shall  move  the  court  that 
any  one  or  more  of  the  other  party  inform  the  court  whether  he 
or  they  claim  title  or  right  to  the  land  under  a  grant  from  some 
other  State;  the  party  or  parties  so  required  shall  give  such  in- 
formation, or  else  shall  not  be  allowed  to  plead  such  grant  or 
give  it  in  evidence  on  the  trial  of  the  cause;  and  if  he  or  they 
give  information  that  he  or  they  claim  under  such  grant,  then 
any  one  or  more  of  the  party  moving  for  such  information  may, 
on  petition  and  bond  as  before  stated,  remove  the  cause  for  trial 
to  the  circuit  court  of  the  United  States  next  to  be  holden  in 
such  district;  and  any  one  of  either  party  so  removing  the  cause 
shall  not  be  allowed  to  plead  or  give  evidence  of  any  other  title 
than  that  by  him  or  them  stated  as  aforesaid,  as  the  ground  of 
his  or  their  claim.  ^ 

III.    The  Right  of  Removal  Cannot  be  Limtfed  ob  Bargained 

Away. 

The  right  of  an  individual  citizen,  or  of  a  corporation  of  a 
State,  when  sued  in  the  courts  of  another  State  by  a  citizen  of 
such  other  State,  to  remove  the  suit  for  trial  to  the  circuit  court 
of  the  United  States,  when  the  amount  in  controversy  or  other 
circumstances  involved  are  such  as  are  contemplated  by  the  acts 
of  Congress  in  that  respect,  is  a  right  that  cannot  be  limited 
either  by  State  enactments  or  bargained  away  by  the  citizen  or 
corporation  possessing  the  same.  It  is  a  right  secured  to  them 
by  the  constitution  and  laws  of  Congress  made  in  pursuance 
thereof  upon  the  subject,  to  secure  to  the  citizens  of  a  State 
other  than  that  in  which  suit  may  be  brought  against  them  in  a 
State  court,  the  removal  thereof  into  the  Federal  court  for  trial 
by  complying  with  the  terms  of  the  acts  of  Congress.  Any  con- 
tract of  the  party,  or  a  statute  law  of  a  State  made  in  abrogation 
of  this  right  are  unconstitutional,  and  are  in  their  very  nature 
inimical  to  law,  and  tend  to  close  the  avenues  of  justice.  Every 
citizen  has  a  right  to  invoke  the  power  of  the  courts  for  vindica- 

» Act  of  Congress,  March  3d,  1875,  §  5;  Session  Acts  of  1874-6,  p.  470. 


CANNOT    BE    LIMITED    OR    BARGAINED    AWAY.        355. 

tion  and  protection  of  his  rights,  and  may  no  more  barter  it 
away  than  he  may  liis  life  or  his  liberty.  He  may  omit  its  exer- 
cise, or  decline  to  assert  it  when  occasions  arise  for  the  opportu- 
nity, but  he  cannot  beforehand  bargain  it  away,  or  bind  himself 
to  forego  it.i 

The  case  here  cited  of  Insurance  Co.  v.  Horse  arose  out  of  a 
statute  of  Wisconsin  requiring  foreign  insurance  companies,  as 
a  condition  to  doing  business  in  that  State,  to  stipulate  against 
removing  to  the  United  States  court  any  suits  that  might  be 
brought  against  it  in  the  State  courts.  The  stipulation  was 
made,  but  subsequently  disregarded  by  the  Insurance  Company, 
and  the  case  coming  before  the  United  States  supreme  court  upon 
the  validity  of  the  State  statute  and  binding  effect  of  the  stipu- 
lation, that  court  held  the  act  of  the  legislature  unconstitutional. 

In  disposing  of  the  case  the  court  reiterate  the  often  repeated 
ruling,  that  a  corporation  is  a  citizen  of  the  State  by  which  it  is 
created,  and  wherein  its  principal  place  of  business  is  situated, 
in  so  far  as  that  it  can  sue  and  be  sued  in  the  Federal  courts,  as 
others  can,  and  is  within  the  clause  of  the  constitution  extend- 
ing the  jurisdiction  of  the  Federal  courts  to  citizens  of  the 
different  States,  and  the  laws  for  removal  of  suits  from  State 
courts  to  the  courts  of  the  United  States. 2 

Parties  cannot  by  contract  oust  the  courts  of  their  ordinary 
jurisdiction.  They  may  compromise  their  suits  and  their  rights 
of  action  already  accrued,  and  give  valid  acquitals,  or  bind  them- 
selves as  to  that  particular  matter  not  to  sue,  but  a  general  under- 
taking not  to  assert  one's  legal  rights  or  not  to  vindicate  their 
injuries  in  the  courts  of  the  country,  is  void,  as  inimical  to  the 
authority  and  policy  of  the  law.^ 

1  Insurance  Co.  v.  Morse,  20  Wall.  19  Wall.  214;   Doyle  v.  Continental 

445 ;    Stephenson    v.    Piscataqua    F.  Ins.  Co.,  4  Otto,  535. 

«&  M.  Ins.  Co.,  54  Maine,  70;  Hobbs  ''Insurance  Co.  v.  Morse,  20  Wall. 

v.    Manhattan    Ins.    Co,    56    Maine,  445,  453,  454;  Insurance  Co.  ».  Dunn, 

417;    Hatch  v.  Chicago,  R.  I.  &  P.  19  Wall.  214;  Express  Co.  «.  Kountze, 

R.  R.  Co ,  6  Blatch.  105 ;  Railroad  Co.  8  Wall.  342 ;  Ohio  &  Miss.  R.  R.  Co.  v. 

V.  Whiton,  13  Wall.  270,  285 ;  Whiton  Wheeler,  1  Black,  286 ;  Cowles  v.  Mer- 

V.  Chicago  &    N.  W.  R.  R.  Co.,  25  cer  Co ,  7  Wall.  118;  Railroad  Co.  v. 

Wis.  124;  Union  Bank  v.  Jolly,   18  Whiton,  13  Wall.  270. 

How.  506;   Payne  v.  Hook,  7  Wall.  ^  jngurance  Co.  v.  Morse,  20  Wall. 

425 ;  Suydam  v.  Broadnax,  14  Pet.  67 ;  445,  451 ;  Kill  v.  Hollister,  1  Wilson, 

Bait.  &  Ohio  R.  R.  Co.  v.   Cary,  28  (Eng.)  129 ;  Thompson  v.  Charnock,  8 

Ohio  St.  208 ;  Insurance  Co.  v.  Dunn.  T.  R.  139.    The  two  latter  are  En- 


356  REMOVALS    TO    UNITED    STATES    COURT. 

In  deciding  the  case  of  Insurance  Co.  v.  Morse^  the  supreme 
court  of  the  United  States,  Hunt,  J.,  say:  ""VVe  do  not  consider 
the  question  whether  the  State  of  Wisconsin  can  entirely  exchide 
such  corporations  from  its  limits,  nor  what  reasonable  terms  tliey 
may  impose  as  a  condition  of  their  transacting  business  within 
the  State.  These  questions  have  been  before  the  court  in  other 
cases,  but  they  do  not  arise  here."  Xor  can  a  State  make  any 
valid  law  restricting  the  right  of  suit  in  the  courts  of  the  United 
States;  or  requiring  a  person  having  a  right  under  the  constitu- 
tion and  laws  of  the  United  States  to  bring  his  action  in  a  Fed- 
eral court;  nor  can  such  person  be  compelled  by  a  State  law  to 
first  obtain  leave  of  a  State  court  to  bring  such  action;  and  any 
State  law  imposing  such  restriction  or  requirement  is,  in  respect 
thereto,  unconstitutional  and  void.  If  such  a  statute  be  general 
in  its  terms,  yet  its  operation  must  be  confined,  if  valid  at  all,  to 
the  State  courts  of  the  State  which  enacts  it,  and  can  have  no 
eftect  upon  the  jurisdiction  of  the  United  States  courts,  or  in 
bar  of  a  party's  right  to  sue  in  a  court  of  the  United  States, 
when  sucli  party,  in  all  other  respects,  possesses  the  requisites  of 
a  right  of  action  in  said  courts.  ^  The  case  here  cited  of  Phelps 
v,  O'Brien  was  brought  by  a  citizen  of  another  State  than  Iowa, 
in  the  circuit  court  of  the  United  States  for  the  district  of  Iowa, 
upon  a  judgment  of  an  Iowa  State  court  of  record  against  a 
county.  The  object  was,  it  is  presumed,  to  obtain  more  speedy 
enforcement  by  execution  or  Tnandamus  than  the  State  courts 
were  inclined  to  afibrd.  The  action  was  commenced  in  the  United 
States  court  in  less  than  fifteen  years  after  the  date  of  the  ren- 
dition of  the  judgment  sued  on.  There  was  at  the  time  a  stat- 
ute law  in  force  in  Iowa  declaring,  that  "  no  action  shall  be 
brought  upon  any  judgment  against  a  defendant  rendered  in  any 
court  of  record  in  this  State,  within  fifteen  years  after  the  rendi- 
tion thereof,  without  leave  of  the  court,  for  good  cause  shown, 
and  on  notice  to  the  adverse  party,  except  in  cases  where  the 
record  of  such  judgment  is,  or  shall  be  lost  or  destroyed."    To 

glish  cases,  but   the  doctrine  they  Supreme  Court  in  Insurance  Co.  c. 

assert  is  the  law  this  day  in  America  Morse.      Doyle  t>.   Continental    Ins. 

as  well  as  in  the  English  courts,  and  Co.,  4  Otto,  535. 

the  latter  one  of  the  two  is  believed  '  Phelps  o.  O'Brien  Co.,  2  Dillon, 

to  be  the  leading  case  upon  this  sub-  518. 

ject,  and  as  such  is  cited  by  the  U.  S. 


CITIZENSHIP.  357 

tlie  action  in  the  Federal  court  the  defendant  demurred,  and  re- 
lied as  for  cause  of  demurrer  upon  said  statute,  which  being  a 
general  statute  was  not  by  law  in  Iowa  required  to  be  specially 
pleaded.  The  court  overruled  the  demurrer,  and  sustained  the 
right  of  action  in  plaintiff;  in  doing  so  the  court  say,  Dillon,  J., 
Love,  the  District  Judge,  concurring:  "The  case  made  in  the 
petition  falls  within  tlie  jurisdiction  of  this  court  *  *  *  and 
this  jurisdiction  cannot  be  in  any  maunner  limited  or  affected  by 
State  legislation."  1 

IV.     Citizenship  can  Only  be  Disputed  by  Plea  in  Abate- 
ment. 

When  an  action  or  suit  is  removed  to  the  United  States  court, 
from  a  State  court,  under  the  twelfth  section  of  the  judiciary 
act,  if  the  citizenship  of  the  party,  or  of  either  party,  is  disputed, 
it  must  be  by  plea  in  abatement;  the  question  cannot  be  raised 
or  tried  during  the  trial  upon  the  merits. ^ 

Colorable  Change  of  Residence.  A  merely  colorable  change 
of  residence  or  citizenship,  into  another  State,  done  with  a  view 
to  confer  jurisdiction  of  a  contemplated  cause  of  action  upon  the 
United  States  circuit  court,  and  not  with  hona  fide  intent  of  be- 
coming a  citizen  of  the  State  to  which  the  party  removes,  will 
not  confer  a  right  to  sue  in  the  United  States  court. 

Bona  Fide  Change  of  Residence.  But  if  the  change  of  citi- 
zenship be  hona  fide,  and  with  honest  intention  to  become  and 
be  a  citizen  of  the  State  removed  to,  then  the  right  to  sue  in  the 
Federal  court  attaches  therefrom,  although  the  acquirement  of 
that  right  may  have  influenced  the  removal.  ^ 

V.     Citizenship:   How  Stated  by  Cokporation  Plaintiff. 

So,  in  an  action  by  a  corporation,  in  the  United  States  circuit 
court,  or  the  removal  of  an  action  by  a  corporation  from  a  State 
to  a  United  States  court,  it  is  not  enough  that  the  proceedings 
allege  the  corporation  to  be  a  citizen  of  the  necessary  State,  but 
the  statement  must  be  that  the  corporation  is  created  under  the 
laws  of  the  State.'* 

1  2  Dillon,  519.  Smith  t.  KeraocliejQ,  7  How.  198,  215, 

'  Jones  V.  League,  18  How.  76.  217. 

'  Jones  V.  League,  18  How.  76,  81 ;         •*  Lafayette  Ins.  Co.  <o.  French,  18 

How.  404. 


858  REMOVALS    TO    UNITED    STATES    COURT. 

Nominal  Parties  will  Not  Prevent  Removal.  The  citizenship 
of  the  real  party  in  interest  is  alone  to  be  considered  in  deciding 
questions  of  jurisdiction  dependent  on  citizenship,  and  the  join- 
der  of  nominal  parties  to  the  suit  can  have  no  effect  to  oust  the 
jurisdiction  of  the  United  States  court. ^ 

Must  Come  within  the  Statute.  The  right  of  removal  being 
a  statutory  right,  to  obtain  the  benefit  thereof  the  party  must 
bring  his  case  for  removal  within  the  terms  of  the  statute.^ 

Corporate  Residence.  The  residence  of  a  private  corporation 
is  in  the  State  where,  by  law,  or  under  the  laws  of  which,  it  is 
created.'  Though,  by  the  ordinary  comity  of  States,  it  may  do 
business  in  other  States,  if  the  character  of  its  business  is  such 
as  to  permit  of  it,  and  it  is  not  inhibited  therefrom  by  the  laws  or 
policy  of  such  other  States,  yet  the  transaction  of  business  in 
another  State,  though  by  permission  of  the  law  thereof,  as,  for 
instance,  the  leasing,  of  another  corporation  existing  therein,  its 
corporate  works,  and  therein  operating  the  same,  does  not  make 
such  lessee  corporation  a  corporation  of  the  latter  State.*  It 
still  remains  a  corporation  of  the  State  where  created,  and  is  res- 
ident, and,  for  some  purposes,  continues  to  be  a  citizen  thereof, 
as  does  a  natural  person,  who  is  a  citizen  or  resident  of  one  State, 
still  retain  his  citizenship  and  residence  therein,  although  he 
transacts  business  in  a  neighboring  State. 

Hence,  a  railroad  corporation  of  one  State,  leasing  and  oper- 
ating, by  permission  of  the  law  of  another  State,  a  railroad 
belonging  to  a  domestic  corporation  in  such  other  State,  is 
not  thereby  made  a  corporation  of  the  latter,  or  domesticated 
therein,  but  still  remains  a  corporation  of  the  State  wherein  it 
was  created,  and  foreign  to  the  State  wherein  it  is  operating  such 
leased  road;  and,  as  a  sequence,  may,  if  sued  in  the  courts 
thereof  by  a  citizen  of  such  State,  in  a  matter  of  controversy 
involving  over  five  hundred  dollars,  exclusive  of  costs,  remove 
such  suit  for  trial  into  the  circuit  court  of  the  United  States, 
under  the  twelfth  section  of  the  judiciary  act  of  the  United 
States." 

'  Wood  «.  Davis,  18  How.  467.  »  Treadway  v.  The  Chicago  &  N. 

*  Insurance  Co.  v.  Pechner,  5  Otto,      W.  R.  R  Co.,  31  Iowa,  351, 359. 
183.  ♦  Ibid.  ^ 

» Ibid. 


JUDGE  OF  CAUSE  FOR  REMOVAL.         359 

VI.     United  States  Court  is  the  Judge  of  Cause  fob 
Removal. 

When  a  cause  is  removed  from  a  State  court  into  a  circuit 
court  of  the  United  States,  said  circuit  court  is  the  proper  judge 
of  its  own  jurisdiction,  and  is  not  bound  to  proceed  with  the 
cause  without  satisfying  itself  upon  that  subject,  but  has  a  right 
to  examine  into  the  question  of  jurisdiction  and  decide  the  same, 
and  to  remand  the  cause  to  the  court  from  whence  it  came  if  suf- 
ficient ground  for  its  removal  be  not  shown;  and  of  the  cause  for 
removal  and  sufficiency  thereof,  the  United  States  court,  and  not 
the  State  court,  is  the  judge.  ^ 

The  Citizenship  Required  is  Personal.  The  citizenship  upon 
which  the  removal  of  a  cause  is  dependent,  is  t\\Q  personal  citi- 
zenship to  the  parties,  or  persons^  and  not  to  their  official 
relations,  authority,  or  status.^ 

The  Citizenship  has  Reference  to  the  Commencement  of  Suit. 
The  right  of  removal  being  statutory,  the  party  claiming  it  must 
bring  himself  clearly  within  the  provisions  of  the  statute,  to 
enable  him  to  have  the  benefit  thereof.  The  citizenship  requi- 
site to  removal  must  be  shown  to  have  been  such  at  the  com- 
mencement of  the  suit.^  The  averment  that  a  party  is  a  citizen 
at  the  time  of  making  the  application  is  not  sufficient.  It  does 
not  follow  therefrom  that  he  was  such  at  the  commencement  of 
the  suit.* 

When  State  Court  Refuses  to  Allow  Removal.  When  a  party 
claiming  the  right  of  removing  a  suit  to  the  United  States 
court  brings  his  case  clearly  within  the  provisions  of  the  act  of 
Congress,  and  makes  out  such  a  case  as  entitles  him  to  removal, 
and  the  removal  is  denied  to  him  by  the  State  court,  or  the  State 
court  declines  to  defer  to  the  application,  but  on  the  contrary,  pro- 
ceeds to  entertain  the  cause,  then  the  applicant  may  apply  to  the 
United  States  circuit  court,  under  the  act  ot  Congress  of  1875,5 
for  coercive  process  to  place  the  case  in  the  United  States  court; 

'  Urtetiqui  v.  D'Arcy,  9  Pet.  G92 ;  surance  Co.  v.  Pechner,  5  Otto,  183. 

Pollard  V.  Dvvight,  4  Cr.  421 ;  Wood  v.  *  Insurance  Co.  v.  Pechner,  5  Otto, 

Matthews,  2  Blatchf.  370 ;  Dennistoun  183. 

«.  Draper,  5  Blatchf.  336 ;  State  v.  Cir-  «  Ibid, 

cuit  Judge,  33  Wis.  127.  » Act  of  March  3, 1875,  §  7. 

*  Amory  v.  Amory,  5  Otto,  186 ;  In- 


860  REMOVALS    TO    UNITED    STATES    COURT. 

aud,  also,  if  the  State  court  persists  in  entertaining  the  cause, 
may  therein  plead  such  application  to  the  jurisdiction  of  the 
State  court,  and  the  plea  will  be  effectual ;  for  by  such  applica- 
tion, when  thereby  a  case  for  removal  is  made  out,  the  jurisdiction 
of  the  State  court  is  at  an  end.^ 

VII.     Removal  by  National  CoEPORA'noNS. 

Corporations  created  or  organized  under  laws  of  the  United 
Stat-es  (except  banking  corporations),  and  any  member  thereof, 
if  sued  in  a  court  other  than  a  cir<yidt  or  district  court  of  the 
United  States,  for  alleged  cause  of  action  against  such  corpora- 
tion, or  member  thereof  as  such,  may  remove  such  proceeding  to 
the  proper  circuit  or  district  court  of  the  United  States,  on  peti- 
tion, verified  by  affidavit,  stating  that  a  defense  is  relied  on  arising 
under,  or  by  virtue  of,  the  Constitution,  treaty,  or  law  of  the 
United  States,  and  offering  security  for  entering  the  proceedings 
in  the  United  States  courts,  and  by  doing  such  other  acts  as  are 
required  by  the  act  for  removal  of  certain  causes,  approved  July 
27,  1866,  so  far  as  the  same  may  apply.  ^ 

Note. — For  a  very  thorough  and  exhaustive  discussion  of  the  subject  of 
Removal  of  Causes,  in  all  its  different  phases,  the  reader  is  referred  to  Judge 
Dillon's  excellent  Monograph  on  Removal  of  Causes,  2  Ed.  We  have  sought 
to  give  but  a  mere  outline  of  this  subject,  it  being  somewhat  related  to  our 
text,  and  have  considered  it  advisable  to  refer  the  reader  to  Judge  Dillon's 
work  for  an  extended  treatment  of  the  same. 

'  Shaft  V.  The  Phoenix  Mutual  Life  ly's  Dig.  of  Laws,  Vol.  2,  116,  §  18; 
Ins.  Co.,  67  N.  Y.  544.  R.  S.  of  U.  S.  (1874),  114,  §  640. 

« 15  StaL  at  Large,  227,  §  2;  Bright- 


FROM    TERRITORIAL    TO    STATE    GOVERNMEIfT.       361 


CHAPTEK    XXXYII. 

TRANSITION    FROM   TEKRITORIAL   TO    STATE   GOVERNMENT. 

I.    Judgment  Rendered  during  Transition  Period. 
II.    Disposition  op  Records  of  the  Territorial  Courts. 
III.    Effect  of  Change  op  Government  on  Territorial  Debts. 

I.     Judgments  Kendered  during  Transition  Period. 

Validity  of  Judgments.  Judgments  of  a  Territorial  court,  ren- 
dered between  the  time  of  the  adoption  of  a  State  constitution 
by  the  people,  and  the  time  of  their  admission  by  Congress  into 
the  Union  as  a  State,  are  valid  judgments  of  such  Territorial 
courts;  their  authority  to  act  as  Territorial  courts  does  not  cease 
witli  the  adoption  of  the  constitution,  but  continues  unimpaired 
throughout  the  transition  period,  up  to  the  time  of  their  admis- 
sion into  the  Union  as  a  State  thereof.^ 

Termination  of  the  Territorial  Entity.  The  mere  act  of  adopt- 
ing a  State  constitution,  and  other  preliminary  steps  for  admis- 
sion by  Congress  do  not  create  a  State;  State  entity  occurs,  and 
Territorial  entity  ceases  in  our  political  system,  only  by  the  action 
of  the  national  government  in  admitting  the  Territory  and  people 
therein  as  a  State,  and  thereby  terminating  the  national  Terri- 
torial authority  and  government  over  the  same.^  The  ease  here 
referred  to  of  Iloio  v.  Kane,  was  a  proceeding  of  several  judg- 
ment creditors  by  a  creditor's  bill,  or  in  the  nature  of  it,  to 
enforce  their  judgments,  one  of  which  judgments  was  rendered 
by  the  court  of  the  Territory  of  Wisconsin  after  the  formation 
and  adoption  of  the  State  constitution  by  the  people,  and  before 
its  admission  into  the  Union  as  a  State.  The  objection  to  the 
force  of  this  judgment  was  made,  that  the  powers  of  tlie  Terri- 
torial courts  had  terminated  at  the  time  it  was  rendered,  but  the 
court  held  that  their  power  ended  only  with  the  admission  of  the 

'  How  V.  Kaue,  2  Finn.  531,  547.  ^  Ibid. 


362        FROM    TERRITORIAL    TO    STATE    GOVERNMENT. 

State  into  the  Federal  Union.  That  in  our  political  system  there 
cannot  be  any  such  thing  as  an  American  State  outside  of  the 
Federal  Union,  and  that  tlierefore  the  Territorial  government  and 
authority  as  creatures  of  the  national  power,  continues  to  exist 
until  terminated  by  admission  of  the  country  and  people  thereof 
by  Congress  as  a  State. 

Custody  of  Territorial  Records.  By  reference  to  the  case  of 
Hunt  V.  Palao,^  it  will  be  seen  that  the  records  of  such  judg- 
ments and  Territorial  courts  after  dissolution  of  Territorial  gov- 
ernment, properly  belong  to  the  Federal,  and  not  to  the  State 
courts,  since  the  Territorial  courts  were  United  States  courts,  and 
their  records  should  pass  into  the  keeping  of  the  United  States 
courts,  and  that  no  law  of  the  newly  created  State  can  control 
them.  This  subject,  however,  will  be  more  fully  discussed  in  the 
next  succeeding  section  of  the  present  chapter. 

II.     Disposition  of  Records  of  Territorial  Courts. 

Territorial  courts  are  courts  of  the  United  States.  When  the 
country  of  the  Territory  is  organized  into  a  State,  the  records  of 
the  Territorial  courts  are  not  proper  subjects  of  State  control, 
but  are  subject  to  the  control  of  the  United  States. 2  It  is  for 
Congress  to  declare  to  what  tribunal  or  keeping  these  judicial 
records  shall  be  transferred.  No  law  of  the  State  can  control  the 
same.'  If  left  in  the  custody  of  an  officer  of  such  State  or  clerk 
of  one  of  the  State  courts,  a  writ  of  error  from  the  United  States 
Supreme  Court  does  not  lie  to  carry  the  case  to  that  court, 
although  the  case  may  have  been  such  as  that  the  writ  would 
have  been  effected  to  the  Territorial  court  during  its  existence.* 

So,  the  Cherokee  nation,  so  called,  is  a  Territory  of  the  United 
States,  like  unto  Territorial  governments  of  the  second  grade,  so 
called  formerly  under  the  ordinance  of  1787,  with  the  exception 
that  they  make  their  own  laws,  appoint  their  own  rulers  and 
officers,  and  pay  their  own  expenses;  yet  they  are  under  the  pro- 
tection of  the  national  government,  and  by  treaty  are  to  be 
entitled  to  a  delegate  in  Congress  of  their  own  selection  whenever 
Congress  may  provide  therefor.     Their  laws  and  regulations, 

*  4  How.  589.  »  Hunt  v.  Palao,  mpra;  9  U.  8.  Stat. 

«  Hunt  t).  Palao.  4  How.  589;  9  XJ.      at  Large,  128,  212. 
S.  Stat,  at  Large,  128,  212.  *  Hunt  0.  Palao,  supra. 


EFFECT    OF    CHAXGE    OF    GOVERNMENT.  363 

however,  are  not  to  be  inconsistent  with  the  Constitution  of  the 
United  States  and  laws  of  Congress  regulating  trade  and  com- 
merce with  the  Indians.  1  Such  being  the  case,  their  courts  may 
appoint  administrators  of  the  estates  of  decedents  in  their  country 
with  the  same  regularity  and  responsibility  as  if  granted  by  State 
courts;  ^  and  such  administrators  come  within  the  11th  section 
of  the  act  of  Congress  of  24th  of  June,  1812,  declaring  that  "it 
shall  be  lawful  for  any  person  or  persons  to  whom  letters  testa- 
mentary or  of  administration  have  been  or  may  hereafter  be 
granted,  by  the  proper  authority  of  any  in  the  United  States,  or 
the  Territories  thereof,  to  maintain  any  suit  or  action,  and  to 
prosecute  and  recover  any  claim  in  the  District  of  Columbia,  in 
the  same  manner  as  if  the  letters  testamentary  or  administration 
had  been  granted  in  the  District."  Therefore,  an  administrator 
appointed  in  said  Cherokee  nation  may  sue  in  said  District  of 
Columbia,  contrary  to  the  common  law  doctrine  that  such  powers 
may  not  be  exercised  in  other  jurisdictions  than  where  obtained. ^ 
So,  too,  by  force  of  the  same  act,  the  right  to  sue  in  said  District 
is  conferred  upon  administrators  and  executors  generally,  of  all 
the  States  and  Territories  of  the  United  States,  in  express  terms. 

III.    Effect  of  Change  of  Government  on  Territorial  Debts. 

By  transition  from  a  Territorial  government  into  a  State  gov- 
ernment, the  debts  of  the  Territory  are  not  extinguished,  but  by 
a  principle  of  national  law  become  debts  of  the  State.  The  mere 
change  of  government  or  of  rulers,  or  even  of  the  allegiance  of 
a  people,  does  not  affect  their  obligations.  The  new  governments 
succeed  to  all  the  fiscal  rights  and  liabilities  of  the  former  gov- 
ernment, of  a  civil  nature.  The  new  governments  take  the 
country  cum  onereA  Hence,  where  by  the  law  of  a  State,  the 
State  may  be  sued,  a  civil  action  lies  against  such  State  upon  a 
debt  of  the  Territory  which  was  superceded  by  the  State.  ^  If 
such  were  not  the  case  upon  general  principles  in  regard  to  the 
Territorial  indebtedness  attaching  itself  to  the  State,  yet  it  is 
held  that  such  is  the  ejffect  of  a  provision  of  the  State  constitu- 
tion as  follows:    "  That  no  inconvenience  may  arise  by  reason  of 

*  Mackey  «.  Coxe,  18  How.  100.  *  Wheaton  on  International  Law,  § 

«  Ibid.  63;  Baxter  v.  State,  9  Wis.  38. 

«  Ibid.  »  Baxter  <c.  State,  9  Wis.  38. 


364       FROM    TERRITORIAL    TO    STATE    GOVERNMENT. 

a  change  from  a  Territorial  to  a  permanent  State  government,  it 
is  declared  that  all  rights,  actions,  prosecutions,  judgments, 
claims  and  contracts,  as  well  of  individuals  as  of  bodies  corporate, 
should  continue  as  if  no  such  change  had  taken  place."  * 

1  Baxter  «.  State,  9  Wis.  88. 


INDEX 


ABATEMENT, 

pendency  of  another  action  in  another  State  no  ground  for,  145,  146, 

in  U.  S.  court  is  ground  for,  146. 
whether  pendency  of  suit  in  State  Court  is  ground  for,  to  a  suit  in  XJ. 
8.  Court,  145. 

vice  versa,  146. 
judgment  in  another  State  is  ground  for,  146. 
so,  also,  in  U.  S.  court,  146. 

the  fact  that  an  appeal  has  been  taken  will  not  prevent  the 
bar,  146  n.  4. 
what  is  necessary  to  make  a  judgment  a  bar  to  another  suit,  147. 

must  be  upon  the  merits  and  final,  147. 
if  suit  barred  in  original  State,  whether  barred  in  other  States,  174, 
175. 

See,  further,  Bar  ;  Judgment. 
ACCEPTANCE, 
of  bills. 

what  law  governs,  63. 
ACCESSORIES, 

non-resident,  before  the  fact,  240,  243. 

liability  to  punishment,  240,  243. 
See  Crimes. 
ACKNOWLEDGMENTS, 

power  to  take  is  local,  211. 
ACTIONS.    See  Real  Actions  ;  Personal  Actions. 
ADMINISTRATORS.    See  Executors  and  Administrators. 
ADMIRALTY.    See  Maritime  Causes  ;  Maritime  Liens  ;  Maritime  Torts  ; 

Jurisdiction. 
AFFREIGHTMENT, 

contracts  of,  governed  by  what  law,  71. 
what  law  governs  bills  drawn  on  the  consignee,  71,  72. 
contracts  of,  made  by  foreign  corporations,  72. 
ALIMONY, 

,  action  at  law  will  not  lie  in  another  State  upon  decree  of,  183. 
bill  in  equity  will  lie  on  decree  of,  of  another  State,  183. 
when  suit  may  be  brought  upon  decree  of,  in  U.  S.  court,  184. 
(365) 


866  INDEX. 

ALIMONY  —  Continued. 

a  divorce  a  mensa  et  thoro  no  defense  to  suit  on,  granted  in  another 
State  prior  thereto,  184. 

See  Divorce. 
AMERICAN  INTER-STATE  LAW, 

deflnitioD  of,  8. 
ANCILLARY  ADMINISTRATION.    See  Executors  and  Admikistatobs. 
APPEAL, 

effect  of,  as  against  a  suit  on  the  judgment  in  another  State,  90. 
APPEARANCE, 

effect  of,  unauthorized  on  judgment,  102. 

of  fraudulent,  102. 
gives  jurisdiction  of  non-resident,  282. 
by  an  attorney  of  non-resident,  282. 

See  Judgment. 
ASSETS.    See  Distribution  ;  Executors  and  Administrators. 
ASSIGNEE, 

sued  in  U.  S.  court  bar  to  suit  in  State  court,  14, 15. 
See  Assignments. 
ASSIGNMENTS. 

foreign,  whether  good  against  resident  creditors,  138. 

which  contravene  the  lez  loci  ret  aitcB,  138. 
of  personalty,  how  far  valid  in  other  States,  204 
of  realty,  must  conform  to  the  lex  loci  rei  sites,  204. 
under  insolvent  law  as  against  subsequent,  under  bankrupt  law,  839, 
330. 

See  Insolvency. 
ATTACHMENT, 

State  cannot  attach  property  in  the  hands  of  United  States  officer,  13. 
State  courts  can  restrain  its  citizens  from  suing  out,  in  another  State, 

43,44. 
bonds  given  to  United  States  Marshal,  where  suable,  57. 
is  a  proceeding  in  rem,  124. 
no  personal  judgment  can  be  rendered.  124  126. 

unless  defendant  appears  or  is  served,  124. 
effect  of  the  levy  in.  125. 
relation  of  the  sale  back  to  the  levy,  125. 
only  the  property  levied  on  is  bound,  125. 
sale  in,  if  regular  carries  title,  125. 
judgment  in,  will  not  sustain  an  action,  126. 

service  in.  if  made  in  a  different  State,  or  by  publication,  will  not  sus- 
tain a  personal  judgment,  126. 
the  levy  in,  does  not  work  a  satisfaction,  127. 
cannot  be  had  against  foreign  corporation  extending  its  road  into  the 

State  by  virtue  of  a  statute,  289. 
how  affected  by  subsequent  bankruptcy,  327. 
See  Garnishment  ;  In  Rem. 
ATTESTATION  AND  SEAL, 
law  governing,  113. 

See  Evidence. 


INDEX.  367 


B. 

BANKRUPT  LAWS, 

their  effect  on  the  jurisdiction  of  State  courts,  326, 
arrest  proceedings  in  State  courts,  326. 
their  effect  on  attachment  proceedings,  326. 
their  effect  on  fixed  liens,  327. 

the  lien  may  be  enforced  in  State  courts,  327. 
See  Insolvenct;  Insolvent  Laws. 
BAR, 

suit  in  U.  S.  court  against  an  assignee,  to  a  suit  against  the  same  in 

State  court,  14, 15. 
judgments  are,  to  suit  on  original  demands,  89,  90. 
judgment  rendered  in  regard   to  matter  occurring  on  Inter-State 
boundary  river,  343. 
See  Abatement  ;  Boundary  River  ;  Judgment 
BASTARDY, 

suit  on  judgment  rendered  in  another  State,  91,  151. 
penalty  for,  is  local,  150-154. 
discussed,  150-154. 

child  born  of  non-resident  and  out  of  the  State,  150, 151. 
statutes  against  not  intended  for  the  relief  of  other  States,  150-154. 
See  Statutory  Actions  ;  Crimes. 
BAYOUS, 

subject  to  State  control,  321. 
BEQUEST, 

of  personal  property,  governed  by  what  law,  196. 
See  Wills  ;  Personal  Property. 
BIGAMY, 

whether,  if  both  marriages  are  foreign,  238. 
See  Crimes. 
BILLS  AND  NOTES.    See  Negotiable  Instruments 
BONDS.    See  Taxation  ;  Conditional  Bonds  ;  Official  Bonds. 
BOUNDARY  RIVERS. 

jurisdiction  over,  336. 
U.  S.  has  admiralty  jurisdiction  over,  336. 
right  of  common  in,  335,  336. 
territorial  State  boundary,  336,  337. 
as  to  things  permanent,  336. 
jurisdiction,  336. 
islands,  336. 

other  local  objects,  336,  337. 
what  is  the,  337. 
States  have  concurrent  jurisdiction  over,  337. 
that  attaching  first,  holds,  338. 
inequality  and  effect  of  the  system,  338. 
discussed,  338. 

with  reference  to  a  criminal  point  of  view,  338. 
with  reference  to  statutory  actions,  339. 


368  INDEX. 

BOUNDARY  mYEUS  — Continued. 

States  have  concurrent  jurisdiction  over  — Continued, 

Inequality  and  ettect  of  the  system  —  Continued. 

acts  committed  by  diflerent  persons,  839,  840. 

acts  prohibited  by  one,  but  allowed  by  the  other 

State,  340,  341. 
with  reference  to  contracts  made  thereon,  842. 
instances  of  jurisdiction,  343. 
judgment  in  one  bar  to  suit  in  other,  843. 
act  on  one  side  doing  injury  to  mill  on  other  side,  844. 
may  grant  injunctions  against  doing  certain  acts  on 

other  side,  846. 
contract  for  carriage  across,  governed  by  what  law, 
846. 
permanent  erections  in,  where  taxable,  345. 


a 

CAPACITY— OF  PERSONS  TO  CONTRACT, 

as  to  personal  matters,  190, 191. 

governed  by  law  of  place  where  contract  is  made,  190, 191. 
as  to  real  property,  190, 191. 

governed  by  law  of  place  where  situated,  190, 191. 
to  marry, 

by  what  law  governed,  191. 

when  done  in  evasion  of  the  law  of  the  domicile,  the  effect, 
193. 
plea  of  infancy,  193. 
of  foreign  corporations,  289. 

See  Contracts. 
CAPITAL  STOCK, 

subscriptions  to,  governed  by  law  of  company's  residence,  203. 
See  Stockholder. 
CHANGE  OF  GOVERNMENT. 

effect  of,  on  decrees  rendered,  100. 

See  Government. 
CHEROKEE  NATION, 
is  a  territory,  363, 

administrators  appointed  by  courts  of,  863. 
CHILDREN  — CUSTODY  OF, 

granted  by  court  having  jurisdiction  is  respected  in  other  States.  183. 
See  Infants  ;  Guardians. 
CIRCUIT  COURTS  OF  UNITED  STATES, 
citizenship,  how  averred  in  suit  in,  30. 
amount  necessary  to  give  jurisdiction,  how  proved,  80. 
administer  State  laws,  34. 
how  take  notice  of  State  laws,  34. 

chancery  proceedings  in,  how  conducted,  84. 
in  matters  of  general  commercial  law,  35. 


INDEX.  369 

CIRCUIT  COURTS  OF  UNITED  ST ATB8  —  Continued. 

do  not  follow  State  forms  or  modes  of  proceedings,  35. 

■when  they  do,  35. 
whether  follow  processes  of  highest  State  court,  36. 
follow  State  constructions  of  State  constitutions  and  laws,  38. 
when  not,  37. 

See  United  States  Cottrts. 
CITIZENS, 

who  are,  19,  189. 

of  the  States,  19. 
how  averred  in  suit  in  U.  S.  court,  30. 
under  the  act  governing  removal  of  causes,  190. 
foreign  corporations  not  entitled  to  privileges  of,  285,  386. 
See  Remotal  of  Causes. 
CIVIL  LAW, 

in  what  States  presumed  to  exist,  33. 
COERCION, 

domicile  not  acquired  by,  188. 

See  Fraud. 
COMITY, 

what  is,  4. 

its  recognition  by  the  States,  4. 

when  recognized  as  governing  courts,  4,  5. 

not  eflective  to  enforce  penalties,  4. 

nor  police  regulations,  4. 

nor  offenses  against  the  States,  4,  233. 

nor  statutory  rights  and  remedies,  5. 
as  giving  the  right  to  sue,  23. 
as  giving  extra-territorial  force  to  laws,  167. 

See  Extra-Territorial  Force  of  Laws. 
COMMERCE  AMONG  THE  STATES, 
meaning  of  the  term,  309,  310. 
under  control  of  Congress,  309,  310. 
States  imposing  impediments,  310,  311. 
until  controlled  by  Congress  is  free,  311. 
State  cannot  discriminate  against  non-residents,  313. 
extent  of  inhibition  of  State  interference,  313. 
State  laws  regulating  vessels  engaged  in,  void,  314 
police  power  of  States  over,  314. 
State  laws  imposing  tax  for  local  benefits,  void,  316. 
State  cannot  impose  tax  upon  interSt&te  traveler,  815 
States  cannot  impose  tax  upon  commanders  of  vessels  as  such,  316. 

or  for  passengers  whom  they  carry,  316. 
States  may  tax  vessels  at  the  home  port,  317. 

but  cannot  be  taxed  in  States  where  they  temporarily  are,  317. 
ferry-boat  cannot  be  taxed  on  both  sides  of  the  river,  318,  319. 
pilotage  may  be  regulated  by  Congress,  320. 

in  the  absence  of.  States  may  regulate,  315,  820. 

Federal  courts  have  jurisdiction  of  suits  for,  320. 
warehouses  and  elevators  subject  to  State  control,  821. 
State  control  of  bayous  and  sloughs,  321. 
24 


370  INDEX. 

COMMON  CARRIERS. 

what  law  governs  contracta  of,  59. 

when  affecting  two  or  more  States,  59. 

See  CORPORATIONB. 

COMMON  LAW. 

how  the  basis  of  State  jurisprudence,  29. 
exists  in  the  States,  33. 
presumption  as  to,  83,  84. 
to  what  extent  prevails,  83. 
in  what  States  not  presumed  to  exist,  83. 
no  national,  34. 
"  COMMON  LAW  CIVIL  JURISDICTION," 

meaning  of,  29. 
COMMON,  RIGHTS  OF, 

in  tide  waters  and  waste  places,  334. 

is  in  the  people  of  the  State,  334. 
State  may  restrict  use  of,  to  its  own  citizens,  834 
right  of  fishery,  335. 
in  navigable  inland  waters  and  land  thereunder,  834. 
belongs  to  the  State,  334. 

but  subject  to  U.  S.  control  of  commerce,  885. 
in  interstate  boundary  waters,  335. 
extent  of,  336. 

See  BouNDAUT  Rivers. 
CONCLUSIVENESS  OF  JUDGMENT,  108. 

See  Judgments. 
CONCURRENT  JURISDICTION, 

in  cases  of,  the  tribunal  first  obtaining  jurisdiction  has  precedence, 
12, 14. 

in  civil  cases,  28. 
of  State  and  U.  S.  courts,  28. 
extent  tliereof,  28. 
in  equity,  39. 

how  affected  by  removal  of  causes,  40. 
See  Boundary  Rivers  ;  Criminal  Jurisdiction  ;  Jubisdictiow. 
CONDITIONAL  BONDS, 

actions  on  judgments  rendered  on,  in  other  States,  95,  96. 
CONFORMITY, 

none  between  equity  practice  in  State  and  U.  S.  courts,  40. 
See  Circuit  Court  of  United  States;  United  States  Coubtb. 
CONSOLIDATION, 

of  inter-State  corporations,  291. 

See  Corporations. 
CONSTRUCTION,  RULES  OF, 

U.  S.  courts  follow  State  courts,  when,  30. 

in  construing  State  Constitutions  and  laws,  36,  84,  85. 
when  not,  37,  85,  86. 
See  Rules  of  Property  and  Right  ;  Circuit  Courts  of  United  States. 
CONTRACTS, 

what  law  governs,  45-50. 


INDEX.  371 

CONTRACTS  —  Continued. 

What  law  governs  —  Continued. 

lex  loci  contractus,  8,  45-50. 
validity  of,  8,  45-50. 

void  where  made,  void  everywhere,  47,  48, 49. 
lex  fori,  52,  53. 
lex  solutionis,  50,  51,  53. 

when  evasion  is  resorted  to,  what  law  governs,  49. 
what  law  governs  interest,  48,  49. 

having  reference  to  two  or  more  Slates,  what  law  governs,  48,  49,  50. 
damages  on,  subject  to  what  law,  58. 
made  in  violation  of  tlie  laws  of  another  State,  58. 

as  to  the  illegal  intent,  58. 
made  by  letter,  59, 
made  by  common  carriers,  59. 
of  affreightment,  71,  72. 
Impairing  obligations  of,  75-80. 
of  foreign  corporations,  289. 
made  on  boundary  rivers,  342. 
See,  further,  the  different  Sub-Titles,  and  Executobt  Contbacts. 
CORPORATIONS  OF  OTHER  STATES. 

legal  dissolution  of  domestic  corporations  does  not  impair  the  obli- 
gation of  a  contract,  78. 
whether  they  can  plead  the  'Statute  of  limitations,  175,  176. 
existing  in  two  or  more  States,  273-279. 

process  against  from  State  courts,  273. 
taxing  bonds  of,  275. 
.  may  be  sued  in  either  State,  277. 
TJ.  S.  court  foreclosing  mortgage  of,  279. 
•'n^-Slate  suits  by  and  against.  280. 
may  be  plaintiffs,  280. 
as  to  actions  on  contracts,  280. 

on  torts,  280. 
cannot  be  sued,  26,  281. 
property  of  may  be  attached,  281. 
subject  to  proceedings  in  rem,  281. 
service  on  resident  agent,  283. 
appearance  will  give  jurisdiction,  283. 

by  an  attorney,  282. 
made  defendant  when  a  State  is  a  stockholder,  284. 
quo  warranto  lies  only  in  home  State,  284. 
right  of  State  to  exclude  other  State  corporations,  285,  286. 
are  not  entitled  to  privileges  of  citizens,  285,  286. 
can  do  business  only  by  consent,  286. 
may  regulate  terms  upon  which  can  do  business, 
286! 
having  given  permission,  may  revoke  it,  287. 
cannot  impose  terms  which  CQnflict  with  the  Consti- 
tution, 287. 
cannot  require  non-removal  of  causes,  287. 


372  INDEX. 

CORPORATIONS  OP  OTHER  8TXTES  — Continued. 
JnUrState  suits  by  and  against  —  Continued. 

Right  of  State  to  exclude  other  corporaXiona  — Continued. 

if  corporation  remove  the  cause,  State  may  revoke 
license,  28«. 
no  State  can  exclude,  if  engaged  in  Inter-State  commerce,  288. 

or  if  organized  under  U.  S.,  288. 
may  do  business,  if  not  prohibited,  288. 

and  may  sue  on  its  contracts,  288. 
what  law  governs  its  contracts,  289. 
its  capacity,  289. 
its  powers,  289. 
authorized  by  statute  to  extend  the  road  from  another  State,  makes 
it  exempt  from  attachment,  289. 

inter-Si&te  power  to  hold  lands,  290. 

effect  of  inter-St&te  consolidation  of  railroad  corporations,  291. 
does  not  make  them  one,  291. 
unity  of  control  and  of  contract,  291,  292. 
unity  of  interest,  but  not  of  entities,  292. 
become  domesticated,  293. 

mortgage  on  may  be  foreclosed  in  U.  8.  court,  208. 
are  subject  to  police  powers,  293,  294. 
COURTS.    See  Cikcuit  Courts  op  United  States  ;  United  States  Coubts  ; 

State  Courts. 
CRIMES, 

are  local,  227. 

cannot  be  punished  in  other  States,  228. 

laws  against,  have  no  extra  territorial  force,  228. 

See  Bigamy  ;  Larceny. 
committed  partly  in  one  State  and  partly  in  another,  239. 
difficult  questions  under  this  head,  239. 
the  place  of  the  wrongful  act,  239,  240. 

of  the  consequence,  239,  240. 
by  non-resident  through  a  resident,  240. 

accessories,  240. 
false  pretenses,  240,  242. 
committed  in  one  State  without  the  offender  being  therein,  241. 
in  what  instances,  241. 
where  triable,  241. 
by  non-resident  citizens,  242. 

treason,  242. 
the  rule  in  Indiana,  243. 

through  an  innocent  third  person  resident  in  the  State,  248» 
244. 
CRIMINAL  JURISDICTION. 

of  the  national  courts,  215. 

no  common  law  jurisdiction,  215. 

statutory  jurisdiction,  215. 

when  principles  of  the  common  law  resorted  to,  216. 

no  jurisdiction  of  State  offenses,  216,  246. 


INDEX.  373 

CRIMINAL  JVRISBICTIOI^  —  Continued. 
of  State  courts, 

have  jurisdiction  of  what,  216. 

no  jurisdiction  of  olienses  against  United  States,  316,  344. 
same  act  may  be  an  offense  against  State  and  United  States,  316. 
incidents  to  national  local  jurisdiction,  217. 

if  offender  flee  may  apprehend  him,  317. 
may  convey  him  tlirougli  tlie  State,  217. 
national  municipal  corporations  confined  to  their  territorial  limit, 

318. 
no  concurrent  State  and  National,  344. 

how  regarded  in  the  early  history  of  the  government,  344. 
State  courts  cannot  punish  crimes  against  United  States,  344. 
U.  S.  courts  cannot  punish  crimes  against  States,  345. 
See  Boundary  Rivers  ;  Crimes  ;  Jurisdiction. 
CURATIVE  LAWS, 

do  not  impair  the  obligation  of  contract,  77,  78. 
See  Obligation  op  Contracts. 
CUSTODY  OF  CHILDREN.    See  Children. 


D. 

DAMAGES, 

what  law  governs,  58. 

in  contracts,  58. 
in  torts,  58. 

See  Contracts  ;  Torts. 
DEATH, 

statutory  actions  for  the,  of  a  person,  155. 
See  Statutory  Actions. 
DEBTS  AND  MONEY  OBLIGATIONS, 
follow  the  owner's  domicile,  203. 

bank  notes,  203. 
bonds  of  a  corporation  held  by  non-residents  not  taxable,  303. 
though  secured  by  mortgage  will  not  locate  debt  at  the  place  of  the 

property,  203. 
•where  taxable,  205. 

See  Personal  Property  ;  Taxation. 
DECISIONS  OF  COURTS, 

force  of,  of  Federal  courts  in  State  courts,  31. 

See  Construction  ;  Rules  of  Property  and  Right. 
DECREES, 

of  other  States  and  of  United  States, 
actions  on,  92,  93,  94. 

the  same  rules  apply  as  to  judgments,  93,  94. 
effect  of  change  of  government  on,  100. 
in  proceedings  in  rem,  100. 
defenses  to  suits  on,  102. 

See  Judgments. 


374  INDEX. 

DEFENSES, 

to  negotiable  instruments,  governed  by  what  law,  66. 
to  suits  on  decrees  of  other  States,  102. 
to  suits  on  judgments  of  other  States,  102-108. 
See  Judgments;  Decrees. 
DISCHARGE.    See  Insolvency. 
DISTRIBUTION  OF  ASSETS, 

of  deceased  persons'  movables, 

follows  the  law  of  the  domicile,  200. 

irrespective  of  place  of  death,  200. 
or  the  situation  of  the  property,  200. 
if  survivors  remove  the  property,  original  domicile  still 
governs,  201. 

in  such  case  where  creditors  should  seek  payment,  203. 
proving  the  law  of  the  domicile,  202. 
lands, 

governed  by  lex  loci  ret  sites,  201. 
See  Executors  and  Administrators  ;  Insolvency  ;  Real  Property. 
DISTRICTS, 

when  several  in  the  same  State,  within  what  jurisdiction,  81. 
DIVORCE,  INTER-STATE  LAW  OF, 

originally  granted  by  ecclesiastical  courts,  179. 
subsequently  by  chancery  courts,  179. 
by  legislatures,  179. 
the  lex  loci  contractus,  179. 
residence  necessary,  179. 

husband  and  wife  residing  in  different  States,  the  courts  of  either 
have  jurisdiction,  180. 

whether  thus  granted  by  one  State,  a  bar  to  the  other  grant, 
ing,  180. 
defendant  need  not  reside  in  the  State,  180. 
granted  where  neither  party  is  domiciled,  and  without  service  on 

defendant,  is  void,  180,  181. 
rule  of  wife's  domicile  when  living  separate  from  her  husband,  181. 
inter-St&te  validity  of,  7, 181. 
valid  where  rendered,  valid  elsewhere,  181. 
want  of  residence  and  fraud  open  to  inquiry,  183. 

See  Alimony  ;  Custody  of  Children  ;  Marriage. 
DOMICILE. 

rule  of  wife's,  when  living  separate  from  her  husband,  181. 
whether  person  can  have  a,  and  also  a  different  residence,  186. 
difference  between,  and  residence,  187. 
definition  of,  187. 
not  acquired  by  coercion,  188. 
of  infants  and  minors,  188. 
how  long  it  continues,  188. 
marital  rights  governed  by,  of  husband,  188. 
of  infants  born  abroad,  189. 

what  necessary  to  give  benefit  of  common  schools,  189. 
,  See  Infants  ;  Personal  Property  ;  Residence. 


INDEX.  375 

DORMANT  JUDGMENTS, 

suit  on,  in  other  States,  90,  91. 

See  Judgments, 
DOWER, 

what  law  governs  amount  and  kind,  269. 
with  reference  to  real  estate,  269. 
under  the  Constitution,  269. 

See  Markiage  ;  Divorce. 
DUALITY, 

of  State  and  national  governments,  9, 10,  11. 


E. 

ELEVATORS, 

subject  to  State  control,  321 

See  Commerce. 
EMINENT  DOMAIN, 

right  of,  belongs  to  the  States,  335. 
in  land,  335. 

under  navigable  waters,  335. 
subject  to  the  control  of  United  State?  over  commerce,  835. 
ENDORSEMENT, 

governed  by  what  law,  60,  61,  62. 
delivery  as  completing  contract  of,  62. 
place  of  making  not  necessarily  place  of  delivery,  62. 
See  Negotiable  Instruments. 
EQUITY, 

concurrent  State  and  national  jurisdiction,  39. 
how  affected  by  removal  of  causes,  39. 
practice  and  rules  in  U.  S.  courts  in,  do  not  conform  to  State  rules,  40. 
to  what  they  do  conform,  40. 
See  Circuit  Courts  op  United  States  ;  Jurisdiction. 
EVIDENCE, 

rules  of  national  courts,  30. 

adopt  State  rules,  30. 
interstate  proof  of  records — 

national  provisions  on  the  subject,  110. 

applicable  only  to  State  courts,  111,  113. 

attestation  and  seal,  113. 

full  faitli  and  credit,  113. 

extend  to  territories,  113. 

judge's  certificate,  114,  115. 

informal  judgment  entries,  114. 

proof  of  statutes,  114. 

courts  must  have  had  jurisdiction,  114. 

proceedings  of  surrogate's  court,  115. 

when  there  is  no  clerk,  115. 

apply  only  to  courts  of  record,  115. 

do  not  apply  to  justice  courts,  115,  116. 


376  INDEX. 

EVIDENCE  —  Continued. 

IrUar-Bt&te  proof  of  records  —  Continued. 

National  provisions  on  the  subject  —  Continued. 

do  not  apply  to  justice  courts,  except  when  part  of 

record  of  an  appellate  court,  116. 
apply  to  court  of  chancery,  116. 

courts  of  probate,  116. 
the  authentication  is  conclusive,  116. 
of  records,  when  new  State  is  formed  out  of  old  one, 
117. 
»'n<«r-Statc  proof  of  State  laws — 

under  act  of  Congress,  117. 
such  laws  should  be  pleaded,  117. 
State  courts  do  not  take  judicial  notice  of,  118, 119. 
nor  of  local  officers  of  other  States,  118. 
except  notaries  public,  119. 
as  by  common  law,  119, 120. 
the  proof  is  to  the  court,  120. 
State  may  relax,  but  not  increase  the  requirements  of  Ck>n- 

gress,  120,  121. 
unwritten  laws  proven  by  books  of  reports,  121. 
private  laws  are  proven  as  facts,  121. 
public  laws,  how  proven,  121. 

Federal  courts  take  notice  of,  121. 
foreign  laws  proven  as  fact,  121. 
printed  volumes  of  statutes  as  evidence,  121. 
clerk's  certificate,  under  act  of  Congress,  131. 
presumption  as  to  laws  of  other  States,  122. 
proof  of  proceedings  of  justices  of  the  peace,  122. 
in  Iowa,  122. 
proof  of  records  of  ofllco  books,  123. 
EXECUTIONS, 

held  by  different  officers,  13, 14. 

See  Levy. 
EXECUTORS  AND  ADMINISTRATORS, 
jurisdiction  of  U.  S.  courts  of,  41. 
•where  letters  to,  should  be  granted,  248. 

the  place  of  domicile,  248. 
ancillary  letters,  248. 

rule  governing,  248. 
excess  of  assets.  248,  249,  254. 
when  letters  are  void,  249. 
can  be  appointed  only  in  the  place  of  domicile  or  assets,  249. 

appointed  in  any  other  place,  void,  249. 
powers  are  local  to  the  State  where  appointed,  250. 

cannot  convey  lands  in  another  State,  208,  212. 

do  not  extend  beyond  the  State,  250. 

nor  confer  a  right  to  property  bej'ond  the  State,  250. 

cannot  sue  in  other  States,  250. 

in  Louisiana  foreign,  may  sue,  251. 


INDEX.  377 

EXECUTORS  AND  ADMINISTRATORS  —  Cow^mtted. 
cannot  be  sued  in  other  States,  26,  27,  108,  251. 

even  if  found  and  served,  252. 
if  they  liave  jugdment,  may  sue  in  other  States  on  the  same,  252,  263, 
where  letters  are  procured  after  suit  commenced,  253. 

how  shown,  253. 
may  sue  in  District  of  Columbia,  255. 
domiciliary  made  ancillary  administrator,  255. 
'  account  should  be  kept  separate,  255. 

accountability  is  separate,  255. 
suits  and  debts  against,  kept  separate,  255. 
legatees  must  then  look  to  the  domiciliary,  255. 
assets  first  liable  to  local  claims,  255. 
if  estate  is  being  administered  in  different  States,  creditors  may  pro- 
ceed in  either,  256. 
order  of  payment  of  foreign  judgments,  256. 

public  administrator  confined  in  his  powers  to  locality  of  appoint- 
ment, 256. 
suits  against,  on  foreign  judgments,  257. 

whether  actions  of  debt  on,  will  lie,  257. 
being  diflferent  administrators,  258. 
executors,  258. 
suing  in  other  States  in  their  own  right,  259. 
for  lands  devised  to  them,  259. 
State  being  subsequently  divided,  259. 
on  judgments  recovered  by  them,  260. 
on  notes  payable  to  bearer,  261.  / 

assignee  of  note  may  sue  on,  261. 
removing  from  the  State,  261. 

whether  suspends  powers,  261,  263. 
suit  by,  in  U.  S.  courts,  41,  262,  270. 
statutory  authority  to  act  in  other  States,  268. 

.   their  ofiicial  character  determined  by  law  of  place  of  ap- 
pointment, 264. 
suits  against  in  U.  S.  courts,  270. 

State  statutes  in  derogation  of  such  jurisdiction,  270. 
liens  of  judgments  thus  rendered,  271. 
when  follow  local  law,  271. 
pleading  in  inter-State  suits  by,  272. 
in  suits  upon  judgments,  272. 
EXECUTORY  CONTRACTS, 

concerning  two  States,  governed  by  what  law,  211. 

See  CONTKACTS. 

EXEMPTION,  ^ 

property  levied  on,  recoverable  by  suit,  14. 
governed  by  what  law,  53,  54  ■      • 

EXTRADITION, 

among  the  colonies,  218. 

under  the  articles  of  confederation,  219. 

under  the  Constitution,  219,  220. 


378  INDEX. 

EXTRADITION  —  Conii/jw^rf. 

the  duty  to  surrender,  220. 

whether  absolute,  220,  and  n.  4. 
nature  of  the  otTensc,  221. 
offense  must  have  been  committed  within  the  Jurisdiction  asking  for, 

221. 
charge  must  be  positive,  221. 
U.  8.  courts  have  power  to  examine  into  the  charge,  221. 

its  sufflciency,  221. 
what  must  be  shown  to  justify  the  delivery  of  the  fugitive,  221. 

without  such  showing  the  arrest  is  void,  222. 

and  a  bond  taken  for  his  appearance  also  void,  222. 
object  of  our  law,  222. 
cannot  be  perverted,  222. 
its  use  to  enforce  civil  obligations,  222. 

invalid,  222. 

contracts  made  while  so  delivered  up,  void,  223 

•whether  process  served  on  him  while  so  brought  back  is 
valid,  222  n.  4.  • 

demand  must  be  made  by  the  governor  of  the  State  of  the  fugitive, 

223. 
may  surrender  for  high  misdemeanors,  223. 
■whether  copy  of  indictment  should  accompany  demand,  223. 
sufficiency  of  charge  may  be  examined  into  on  Tiabeas  corpus,  223. 

of  the  affidavit,  223,  224. 
if  fugitive  be  in  custody  under  local  process,  whether  delivered  up, 

224. 
whether  fugitive  returned  under  invalid  process  may  be  tried,  225. 
is  based  exclusively  on  the  constitution,  not  on  comity,  225. 
a  State  cannot  extradite  to  a  foreign  power,  225,  226. 
State  may  punish  for  crime  other  than  the  one  for  which  fugitive  is 
returned,  227. 
EXTRA  TERRITORIAL  FORCE  OF  LAWS, 
laws  have  none,  10,  167,  168. 
of  natural  or  universal  law,  167. 
by  comity  of  State,  167. 
foreign  remedies  will  not  be  enforced,  168. 
as  governing  citizens  absent  from  the  State,  169,  170. 
oath  of  office  administered  to  Vice-President  King  in  Cuba,  170. 


P. 

FALSE  PRETENSES, 

made  by  party  out  of  the  State,  240. 
where  indictable,  240,  243. 

whether  at  place  of  utterance  or  place  where  acted  upon, 
240,  241. 
See  Chimes  ;  Criminal  Jurisdiction. 


INDEX.  B7d' 

FEDERAL  COURTS, 

paramount  authority  of,  9,  10,  11,  15. 
See  Circuit  Courts  of  United  States  ;  United  States  Coubts  ;  Removal 

OF  Causes. 
FEDERAL  OFFICERS. 

not  subject  to  State  courts,  15. 
FEDERAL  POWERS, 

cannot  be  affected  by  State  laws,  37,  38. 
FERRIES,  INTER-STATE, 

cannot  be  taxed  on  both  sides  of  the  river,  318,  319. 
power  of  States  to  license,  347.  * 

cannot  interfere  with  commerce,  348. 
extent  of,  348,  350. 
effect  of  exercise  of,  348. 

cannot  grant  within  the  limit  of  other  States,  348. 
grant  of,  is  local,  349. 
is  a  right  to  carry,  349. 
not  a  right  to  land,  349. 

this  exists  without  the  grant,  349. 
over  streams  upon  which  foreign  countries  border,  850. 
is  a  municipal  power,  350,  351.  / 

navigable  waters  and  public  landings  are  free  to,  351. 
between  two  States  that  are  at  war,  may  be  suppressed,  351. 
FISHERY, 

right  of,  belongs  to  the  people  of  a  State,  335. 
FOREIGN  ASSIGNMENTS.    See  Insolvency;  Assignments. 
FOREIGN  CORPORATIONS.    See  Corporations. 
FOREIGN  EXECUTORS  AND  ADMINISTRATORS.     See  Executors 

and  Administrators. 
FOREIGN  LAWS, 

proven  as  facts,  121. 
FORFEITURES, 

for  usury  bear  relation  to  the  remedy,  83. 
See  Usury. 
FRAUD, 

jurisdiction  of  person  obtained  by,  is  invalid,  26, 108. 
as  a  defense  to  suits  on  judgments  of  other  States,  105-108. 
See  Judgments  ;  Statute  of  Frauds. 
FREIGHT.    See  Affreightment. 


Q. 

GARNISHMENT. 

State  court  cannot  garnish  United  States  officer,  12, 13. 

Is  a  proceeding  in  rem,  127. 

in  the  nature  of  an  attachment,  127. 

■when  jurisdiction  attaches,  130. 

the  design  and  purpose  of,  127. 

its  phases  in  connection  with  JTnier-State  law,  127, 128. 


580  INDEX. 

GARNISHMENT  —  Continued. 

may  be  had  against  non-resident  who  is  found  within  the  State,  If  the 
property  be  with  him,  127,  128. 

whether  if  tlie  property  be  not  with  him,  128. 
applies  equally  to  corporations,  129 
if  corporation  is  chartered  by  both  States,  129. 
a  valid  judgment  against  garnishee  is  a  defense  to  suit  against  him 

by  the  original  debtor,  129. 
eflFect  of  service  outside  the  State,  129,  130. 

resident  debtor  cannot  be  garnished  if  he  is  the  assignee  of  the  orig- 
inal debtor  in  another  State,  180. 

See  Attachment  ;  In  Rem. 
GOVERNMENT, 

change  of,  effect  on  judgments  rendered,  100. 
transition  of  Territorial  to  State, 

judgments  rendered  during  period  of,  361. 
when  Territorial  entity  terminates,  361. 
to  whom  belongs  custody  of  the  records,  362. 
effect  of,  on  debt  of  Territory,  863. 
GOVERNMENT  LANDS, 

not  subject  to  local  jurisdiction,  213. 

who  can  grant  title  to,  214. 

action  at  law  will  not  lie  in  U.  S.  courts  upon  a  certificate  of  entry 

214. 
power  to  revoke  patent  to,  214. 
GUARDIANS, 

appointed  at  minor's  domicile,  266,  267. 

custody  of  wards  entrusted  to  what,  266. 

powers  of,  are  local,  266. 

marriage  of  mother  cannot  change  domicile  of  infants  when,  267. 

of  lunatics,  to  what  courts  accountable,  267. 

suit  on  foreign  judgment  by,  267. 
of  non-resident  minor's  property,  267. 
sale  of  land  procured  by  foreign,  267. 
removing  ward  and  property  into  another  State,  268. 
to  what  court  then  accountable,  268. 
the  rule  in  Louisiana,  268. 


H. 

HABEAS  CORPUS, 

issuing  from  a  State  court,  831. 

cannot  discharge  prisoner  held  under  United  States  authority, 
331. 
issuing  from  U.  S.  court,  332. 

cannot  interfere  with  prisoner  held  under  State  authority,  382. 
what  return  of  the  writ  should  show,  332. 

See  EZTRABITIOK. 


INDEX.  381 


HUSBAND  AND  WIFE, 

marital  rights  governed  by  husband's  domicile,  188. 
See  Makkiagk  ;  Divobce. 


I. 


IMPAIRING  OBLIGATION  OF  CONTRACTS.    See  Obligations. 
IMPRISONMENT  FOR  DEBT, 

abolition  of,  does  not  impair  the  obligation  of  a  contract,  79,  80. 
INFANCY, 

plea  of,  governed  by  what  law,  192. 
INFANT, 

grant  of  custody  of,  183. 
domicile  of,  188. 

born  abroad,  189. 
plea  of,  governed  by  what  law,  192. 

See  Domicile  ;  Residence. 
INFORMAL  JUDGMENTS, 

suit  on,  in  other  States,  89. 

See  Judgments. 
INJUNCTIONS, 

cannot  issue  by  either  State  or  Federal  courts  against  each  other,  16. 
U.  S.  courts  cannot  restrain  suits  in  State  courts,  42. 

except  in  bankruptcy  matters,  42. 
State  courts  may  restrain  persons  from  bringing  suits  in  other  States, 
43,43. 

not  proceedings  in  U.  S.  court,  43. 

may  restrain  its  citizens  from  attaching  in  other  States,  43, 44. 
the  doing  of  acts  on  opposite  sides  of  inter-St&tQ 
boundary  rivers,  346. 
IN  REM, 

foreign  corporations  subject  to  proceedings  in,  381. 
See  Judgments  ;  Attachments  ;  Garnishment  ;  Mabitime  Causes. 
INSOLVENCY  — INTER^STATE  LAW  OP, 
discharge, 

eflfect  of,  by  State  court,  133. 
citizenship  of  the  parties  governs,  132,  133. 
place  where  contract  performable  does  not  govern,  133,  133^ 
jurisdiction  of  creditor  necessary,  132,  133. 
cannot  effect  citizens  of  other  States,  132-136. 
contract  of  indemnity  and  suretyship  not  affected  by  dis- 
charge in  another  State,  136. 
distribution  of  assets, 

national  priority,  136. 
limit  of.  137. 

subrogation  of  sureties  paying,  137. 
if  national  debt  is  not  yet  matured,  137. 


882  INDEX. 

INSOLVENCY  — INTER-STATE  LAW  OF  —  Continued. 
foreign  assignments, 

not  good  as  against  resident  creditors,  138. 

though  tlie  creditors  sue  subsequent  to,  138,  139. 
the  rule  in  Maryland,  138. 
if  contravene  the  lex  rei  sita  are  not  good,  138. 
if  they  do  not  contravene  the  law,  and  there  are  no  home 

creditors,  will  be  respected,  139. 
real  estate  can  only  be  assigned  by  conforming  to  the  lex 

loci  rei  sitcB,  139. 
the  remedies  governed  by  the  lex  fori,  189. 
See  Insolvent  Laws  ;  Assignments. 
INSOLVENT  LAWS, 

whether,  impair  the  obligation  of  contract,  80. 
States  may  pass,  827. 
extent  of,  327. 

cannot  discharge  obligations  existing  at  time  of,  338. 
or  if  creditor  is  non-resident,  328. 
or  if  debt  was  created  in  another  State,  328. 
how  effected  by  bankrupt  law,  329. 

whether  assignment  under  an,  valid  against  assignments  under  bank- 
rupt law,  329,  330. 

See  Bankrupt  Laws  ;  Insolvency. 
INSURANCE, 

policy  of,  governed  by  the  law  of  the  place  where  delivered,  283. 
policy  issued  by  company  before  complying  with  local  statutes,  283. 
not  having  complied  with  local  statute,  company  cannot  sue  on  pre- 
mium notes,  284. 
INTENT, 

marriage  contracted  in  evasion  of  laws  of  domicile,  193. 
sale  made  with,  to  evade  laws  of  another  State,  198. 
INTEREST, 

what  law  governs,  48,  49,  64. 

See  Usury;  Negotiable  Instruments. 
INTERLOCUTORY  JUDGMENTS, 
suits  on,  in  other  States,  96. 

See  Judgments. 
INTERNATIONAL  LAW, 
defined,  6,  7. 
binding  force  of,  6,  7. 
INTESTACY, 

in  case  of,  personal  property  distributed  by  law  of  domicile,  196. 
See  Distribution. 


INDEX.  383 


J. 

JOINT  JUDGMENTS, 

suit  on,  in  other  States,  96,  97. 

See  Judgments. 
JUDGMENTS  — OF  OTHER  STATES, 
the  domestic  character  of,  18. 
of  U.  S.  courts  not  foreign,  18. 

how  such  are  proved,  18. 
how  of  State  courts  i^roved,  18. 
actions  on,  87,  88. 

court  must  have  had  jurisdiction,  87, 88. 

only  on  personal  judgments,  87. 

courts  will  take  notice  of  States  rendering,  87. 

must  have  been  personal  service  or  an  appearance,  88. 

judgments  which  were  rendered  against  non-residents,  88. 

effect  of  payment  of,  when  the  original  judgment  is  reversed, 
89. 

statute  of  limitations  will  run  from  date  of  reversal, 
89. 

are  a  bar  to  suits  on  original  demand,  89. 

informal  judgments,  89. 

etifect  of  appeal  from  original  judgment,  90. 

dormant  judgments,  90,  91. 

judgments  rendered  in  bastardy  cases,  91. 

of  justices  of  the  peace,  93. 

actions  in  State  or  U.  S.  courts  on  judgments  rendered  in 
either,  94. 
conclusiveness  of,  89,  90. 

inquiry  into  the  jurisdiction  of  court  rendering,  91,  93. 
on  conditional  bonds  will  not  sustain  actions  in  other  States,  95,  96. 
rendered  on  penal  bonds,  95,  96,  97. 

actions  on  such  judgments,  95,  96,  97. 
interlocutory,  96. 

actions  on  such  judgments,  96. 
actions  on  joint  judgments,  96,  97. 
competency  of  the  record  as  evidence,  98. 

presumption  of  its  regularity,  98. 

jurisdiction,  presumption  as  to,  98. 

admissibility  of,  99. 

how  authenticated,  99. 

must  be  pertinent,  99. 

when  temporary  judge  has  certified  to  its  correctness,  99. 

where  the  judgment  has  been  assigned,  99. 
See  Evidence. 
form  of,  not  questionable,  99. 
where  part  has  been  satisfied,  100. 

execution  levy  on  land  no  defense  to  suit  on,  in  other  State,  100. 
effect  of  change  of  government  on,  100. 


384  INDEX. 

JUDGMENTS— OF  OTHER  STATES— Continued, 
in  rem,  100. 

effect  of,  100.  101. 
levy  binds  what,  101. 

personal  Judgment  when  there  is  no  service,  101. 
evidence  of  what,  101. 
defenses  to  actions  on  — 

want  of  service,  102, 104,  107. 

want  of  jurisdiction,  107. 

acknowledgments  of  service  in  different  States  ifl  invalid, 

102. 
unauthorized  appearance,  102. 
fi-audulent  appearance,  102. 

officer's  return  of  service  may  be  contradicted,  102. 
■when  the  record  shows  insufficient  service,  102, 103. 
proof  of  the  State  law,  103. 
want  of  service  must  be  pleaded,  103. 

service  had  on  director  in  a  State  other  than  that  of  the  cor- 
poration, 104. 
plea  of  recovery  on  false  testimony,  104. 
that  defendant  was  non-resident  no  defense  if  he  was  at  the 

time  within  the  State,  104. 
error  in  rendering  the  judgment  no  defense,  104 
whether  jurisdiction  should  be  averred,  105. 

of  justices'  judgments,  105. 
whether  controvertible  for  fraud,  105,  106, 107,  108. 
only  such  admissible  as  were  admissible  where  judgment 

rendered,  105,  106. 
may  plead  release,  106. 
may  plead  payment,  106. 
nul  tiel  record  only  plea  which  tests  the  validity  of  the  record, 

106. 
conclusiveness  of  judgments,  108. 
personal  jurisdiction  obtained  by  fraud,  108. 
that  defendant  is  an  administrator  appointed   in  another 

State,  108. 
statute  of  limitations,  107, 171, 172, 178 
actions  on  void  judgments,  112. 
See  Judgments. 
JUDICIAL  NOTICE, 
of  States,  87. 
of  notaries  public,  118. 
of  laws  of  other  States,  118, 119,  198. 
of  officers  of  another  State,  118. 

See  Pkesumptions  ;  Judgments. 
JUDICIAL  POWER  OF  UNITED  STATES, 
extent  of,  17. 
See  Circuit  Coubt  op  United  States  ;  United  States  Courts. 
JURISDICTION, 

of  persons  when  necessary,  22. 


INDEX.  385 

JURISDICTION  —  Continued. 

Of  persons  when  necessary  —  Goniinued, 
how  obtained,  22,  23. 
as  against  non-residents,  23. 
in  personal  actions,  22,  23. 

whether  obtainable  by  the  publication  of  notice,  23. 
in  proceedings  in  rem,  23. 

where  the  defendant  is  non-resident,  33. 
no  judgment  can  be  rendered  against  the  non-resident,  34. 
of  non-residents,  how  obtained,  25. 
obtained  by  fraud  is  invalid,  26. 
of  U.  S.  courts,  of  executors  and  administrators,  41. 
of  foreign  bills  of  exchange,  66,  67. 
See  Boundary  Rivers;  Concurrent  Jurisdiction;  Criminal  Jurisdic- 
tion ;  Equity  ;  Government  Lands  ;  Insolvency  ;  Judgments  ;  Maritime 
Causes  ;  Real  Property. 
JURY,  TRIAL  BY, 

provisions  respecting,  in  the  Constitution  applies  only  to  U.  S.  courts, 
19 
JUSTICES  OF  THE  PEACE, 

suits  in  other  States  on  judgments  of,  93. 
proof  of  proceedings  of,  122. 
in  Iowa,  122. 

See  Judgments. 


KING, 

Vice-President  of  U.  S.,  oath  of  office  administered  to,  in  Cuba,  170. 


L. 

LABORER'S  LIEN, 

on  Inter-State  rafts — 
law  of,  70,  71. 
LANDS.    See  Real  Property. 
LARCENY, 

in  another  State,  229. 

whether  bringing  stolen  property  into  the  State  is,  328,  239. 
the  rule  in  England,  229. 
in  some  of  the  American  States,  239. 
in  others,  229. 

the  true  common  law  rule,  229,  230. 
to  make  it  a  crime,  statute  must  so  declare,  330. 
cannot  punish  the,  committed  in  another  State,  330. 
the  reason  of  the  rule,  230. 
the  rule  in  Alabama,  233. 
25 


886  INDEX. 

LARCENY  —  Oontwied. 

the  rule  in  Connecticut,  338. 
Illinois,  233. 
Iowa.  831. 

Massacliusctts,  334,  336. 
Michigan,  331. 
Missouri,  237. 
New  Yorli,  332,  338. 
Ohio,  337,  338. 
the  law  of  the  trial,  333. 
trial  for  abroad,  as  a  plea  to  second  trial.  333. 
comity  cannot  punish,  333. 
the  Massachusetts  cases  discussed,  336. 
LEASEHOLDS, 

are  personal  property,  and  follow  the  owner,  197. 
LEGAL  OWNER, 

suit  in  name  of,  in  U.  S.  Circuit  Court,  39. 
LETTERS, 

contracts  made  by,  governed  by  what  law,  59. 
LEVY, 

by  State  officer  on  property  in  hands  of  U.  8.  officer,  13,  13. 
by  U.  S.  officer  on  property  in  hands  of  State  officer,  13. 

the  remedy  for  the  above,  13,  14. 
on  exempt  property,  14. 

on  land,  no  defense  to  suit  on  the  judgment  in  another  State,  100. 
binds  what,  in  proceedings  in  rem,  101. 

See  Execution  ;  Attachment. 
LEX  FORI, 

the  rule  of,  52,  53. 
what  included  under,  53. 
exemption  laws  part  of,  53,  54, 
as  to  foreign  assignments,  139. 
as  to  statutes  of  limitations,  171-176. 

See  CoNTBACTs;  Remedy. 
LEX  LOCI  CONTRACTUS, 
law  of,  45-50. 

See  Contracts. 
LEX  LOCI  SOLUTIONIS, 
the  rule  of,  50,  51. 

when  the  contract  has  reference  to  two  States,  61, 53. 
See  Contracts. 
LIENS.    See  Maritime  Liens. 
LIMITATIONS.    See  Statute  op  Limitations. 
LUNATICS.    See  Guardians. 


INDEX.  387 


M. 


MAIL, 

contracts  made  by,  governed  by  what  law,  59. 
MANDAMU8, 

cannot  issue  by  either  State  or  U.  S.  courts  against  each  other's 
officers,  15. 
MARITAL  RIGHTS, 

governed  by  husband's  domicile,  188. 
MARITIME  CAUSES, 

admiralty  jurisdiction  of,  301,  302. 
in  U.  S.  courts,  301. 
extends  to  what  places,  302,  336. 
navigable  waters,  302. 
covers  what  causes,  303. 
when  the  proceeding  is  in  rem,  is  exclusive  to  the  U.  S.  courts,  303,  305. 
where  action  is  personal.  State  courts  liave  jurisdiction,  303. 
common  law  jurisdiction  of  States,  306. 
extent  of,  306,  307. 
covers  contracts  to  build  ships,  308. 

to  furnish  material  witli  which  to  build,  308. 
See  Maritime  Liens  ;  Maritime  Torts. 
MARITIME  LIENS, 

State  cannot  give,  304. 

nor  enforce,  304. 
U.  S.  courts  exclusive  jurisdiction  of,  304. 

do  not  arise  out  of  contracts  to  furnish  materials  in  home  port,  305. 
contracts  to  build  ships  or  for  materials  for  ship  building  do  not 
create,  305. 
MARITIME  TORTS, 

where  must  occur,  305. 
what  necessary  to  render  sucli,  305. 
MARRIAGE— INTER-STATE  LAW  OF, 
nature  of  the  contract,  177. 
its  validity,  7,  177. 
valid  where  made,  valid  everywhere,  7,  177.  178. 

exceptions,  178,  192. 
may  be  dissolved,  178. 

invalid  where  made,  invalid  everywhere,  178. 
capacity  for,  governed  by  what  law,  192. 
contracts  for,  in  evasion  of  the  law  of  the  domicile,  103. 
See  Divorce. 
MECHANIC'S  LIEN.    See  Laborer's  Lien. 
MINORS. 

domicile  of,  188. 
born  abroad,  188. 

See  Infants. 


See  Taxation. 


388  INDEX. 

MORTGAGES, 

of  chattels — 

follow  the  property,  08,  203. 
may  be  enforced  in  other  States,  68,  203. 
on  vessels,  not  subject  to  State  laws,  68. 
made  in  one  State,  while  property  is  in  another,  69. 
validity  of,  69. 
of  lands  in  another  State,  70. 

made  under  assignment  for  the  benefit  of  creditors,  70. 
effect  of,  70. 
of  railroads,  70. 

See  Corporations. 


NATIONAL  BANKS. 

taxation  of,  822,  823. 

NATIONAL  BONDS, 

taxation  of,  324. 

See  Taxatioh. 
NATIONAL  POWERS, 

cannot  be  curtailed  or  affected  by  State  laws,  87,  38. 
NATIONAL  PRIORITY, 

in  payment  of  debts,  136,  137. 

See  DiSTRIBDTIOK. 

NATIONAL  SOVEREIGNTY, 

purport  of,  9,  11. 
NATURALIZATION, 

jurisdiction  of,  32. 
who  has  authority  to  provide  for,  32. 
NATURAL  RIGHTS, 
defined,  5. 
force  of,  167. 
NAVIGABLE  WATERS, 

right  of  common  in,  334,  335. 
are  free,  351. 

See  Maritime  Causes. 
NEGOTIABLE  INSTRUMENTS, 

law  of  place  of  payment  governs,  60. 

endorsement  of  governed  by  law  of  place  where  made  and  delivered, 
60,  fil,  62. 

delivery  as  completing  the  endorsement,  62. 
place  of  making  endorsement  not  necessarily  place  of  deliv- 
ery, 62. 
acceptor  of,  what  law  governs,  63. 
notice  of  dishonor,  must  conform  to  what  law,  64. 
protest  of,  must  conform  to  what  law,  64. 
interest  on,  governed  by  what  law,  64. 


INDEX.  389 

NEGOTIABLE  INSTRUMENTS  —  Continued. 
usury,  governed  by  what  law,  65. 
defenses  to,  regulated  by  what  law,  66. 

foreign  bills  of  exchange  subject  to  U.  S.  court  jurisdiction,  when, 
66,  67. 
NON-RESIDENTS, 

jurisdiction  of,  how  obtained,  23,  35. 

whether  obtainable  by  publication,  23. 
in  proceedings  in  rem,  23. 
when  suable,  25,  26. 

in  what  causes,  26. 
service  on  non-resident  witness  present  in  the  State,  26. 
members  of  partnership  not  served  by  service  on  the  resident  mem- 
ber, 27. 
suit  on  judgment  rendered  against,  88. 
whether  may  be  garnished,  128,  129. 
not  subject  to  tax  on  bond  of  a  local  corporation,  202. 
committing  crimes  outside  the  State,  240-243. 

See  Crimes.  , 

States  cannot  discriminate  against,  313. 

See  Attachment;  Garkishment. 
NOTARIES  PUBLIC, 

whether  judicial  notice  is  taken  of,  who  are,  119. 
NOTICE, 

of  dishonor  of  note  must  conform  to  what  law.  63,  64. 
See  Judicial  Notice. 
NUL  TIEL  RECORD, 

when  proper  plea,  106. 


OBLIGATIONS.    See  Statutory  Obligations. 
OBLIGATIONS  OF  CONTRACT, 

no  State  can  pass  any  law  impairing,  75. 
what  amounts  to,  75. 

applies  to  both  State  legislatures  and  State  constitutions,  75. 
remedy  may  be  changed,  76. 
rebellious  States  are  within  the  prohibition,  76. 
law  releasing  personal  liability  for  corporate  debts  is  such 

an  impairment,  76. 
where  bank  bills  are  made  receivable  for  taxes  by  the  bank's 

charter,  this  cannot  be  impaired,  76. 
charter  giving  exclusive  privileges,  77. 
purchases  made  under  State  exemption  from  taxes,  77. 
curative  laws  do  not  impair,  77,  78. 
exemption  from  taxation  in  consideration  of  a  bonus  paid  in 

advance,  77. 
legal  dissolution  of  private  corporations,  78. 


390  INDEX. 

OBLIGATIONS  OP  CONTRACT  —  Con<t«f/«i. 

existing  laws  enter  into  contracts,  78,  79. 
abolition  of  imprisonment  for  debt,  79,  80. 
State  insolvent  laws,  80. 
taxing  city's  own  indebtedness,  80. 
See  Insolvent  Laws. 
OFFICE  BOOKS. 

proof  of  in  tn<er-State  proceedings,  123. 
OFFICERS, 

U.  S.,  not  subject  to  State  courts,  15. 

See  Official  Bonds. 
OFFICIAL  BONDS, 

are  local  to  the  States  where  entered  into,  55. 
cannot  be  sued  on  in  other  States,  55,  56. 
of  U.  S.  officers,  where  may  be  sued  on,  56,  67. 
ORDERS, 

sent  from  one  State  into  another,  59 
what  law  governs,  69. 


P. 

PARTNERSHIP. 

service  on  member  of,  not  good  against,  non-resident  member  of,  27. 
PAYMENT, 

pleaded  to  suit  on  judgment  rendered  in  another  State,  106. 
PENAL  ACTIONS, 

are  local,  148.  149. 

for  bastai-dy,  150-154. 

aie  local,  150-154. 
See  Bastardy  ;  Statutory  Actions. 
PENAL  BONDS, 

actions  on  judgments  rendered  thereon  in  other  Stales,  95,  96,  97. 
See  Statutory  Obligations. 
PENDENCY  OF  ANOTHER  ACTION.    See  Abatement;  Bar. 
PERFORMANCE, 

of  contracts,  what  law  governs,  45-50. 
See  Contracts. 
PERSONAL  PROPERTY, 

capacity  to  contract  in  reference  to,  governed  by  wtat  law,  190, 191. 
it  has  no  fixed  situs,  194. 
follows  the  owner,  194. 

governed  by  the  law  of  the  place  of  the  owner,  8,  194, 195. 
is  subject  to  local  liabilities  before  following  the  owner.  195. 
to  creditors,  195. 
to  taxes,  196. 
sale  of,  valid  where  owner  lives,  is»  valid  where  property  is,  196,197, 199. 

but  is  deferred  to  prior  local  claims,  196. 
in  case  of  intestacy  distributable  by  law  of  domicile,  subject  first  to 
local  claims.  196,  198. 


INDEX.  391 

PERSONAL  -p-ROTEBTY  — Continued. 

bequest  valid  where  made,  valid  everywhere,  196. 

subject  to  local  claims,  196. 
if  sale  of  violates  a  law  of  the  place  where  property  is.  the  latter 

governs,  197. 
when  it  has  a  fixed  locality,  may  pass  with  the  real  estate,  197. 
leaseholds  follow  the  owner,  197. 
sales  of,  invalid  for  illegal  intent,  198, 199. 

if  Ttitent  of  sale  is  to  evade  the  laws  of  other  State  is  invalid,  198. 
distribution  of  deceased  person's  movables,  200-203. 

See  DiSTiBUTiON. 
money  obligations  and  debts,  202. 

See  Money  Obligations;  Debts. 
mortgages  of,  203. 

See  Mortgages. 
subscription  to  capital  stock,  203. 

See  Subscriptions. 
voluntary  assignments,  204. 

See  Insolvency. 
where  taxable,  204. 

See  Taxation. 
Plf/)TAGE, 

may  be  regulated  by  Congress,  320. 

in  the  absence  of.  States  may  regulate,  320. 

U.  S.  courts  have  jurisdiction  of  suits  for,  320. 
PLEADINO. 

in  inter-StaXe  suits  by  executors  and  administrators,  273. 
in  suits  upon  judgments,  272. 
POLICE  POWER, 

belongs  to  the  States,  246,  247. 

extent  of,  246,  247. 

foreign  corporations  subject  to,  293,  294. 

over  Inter-State  commerce,  314. 
POLITICAL  QUESTIONS, 

do  not  come  within  the  jurisdiction  of  courts,  1,  2,  3. 
POWERS.    See  Judicial  Powers  ;  National  Powers  ;  Relative  Pcwers. 
PRESUMPTIONS, 

as  to  laws  of  other  States,  33,  34,  122, 198. 

as  to  common  law  existing,  33,  34. 

See  Judicial  Notice. 

of  regularity  of  judgment  records,  98. 
PRINTED  VOLUMES, 

to  prove  statutes  of  other  States,  121. 
PRIORITY. 

national,  in  payment  of  debts,  136,  137. 
See  Distribution. 
PRIVATE  LAWS, 

how  proven,  131. 
PROCESS, 

from  State  and  U.  S.  courts,  13. 

See  Levy, 


892 


INDEX. 


PROCESS  —  Continued. 

against  witness  non-resident,  who  is  attending  in  the  State,  26. 
PROMISSORY  NOTES.    See  Negotiable  Instuuments. 
PROOF, 

of  records, 

of  laws. 

See  EVIDENCB. 
PROTEST, 

what  law  governs,  64. 
PUBLIC  ADMINISTRATOR, 

power  of,  is  local,  256. 
PUBLIC  LANDINGS, 

are  free,  351. 

See  Ferries. 
PUBLIC  LAWS, 

how  proven,  121. 

Bee  Evidence. 

QUO  WARRANTO, 

against  a  corporation  lies  only  in  the  home  State,  284. 


R 


RAILROADS.    See  Corporations  and  Consolidation. 
REAL  ACTIONS, 

where  should  be  brought,  82. 

See  Real  Property. 
REAL  PROPERTY, 

given  as  security  for  a  contract  made  in  another  State  than  where 
situated,  47. 

how  affects  law  governing  the  contract,  47. 
foreign  assignments  of,  1.S9. 

capacity  to  contract  in  reference  to,  governed  by  what  law,  190, 191. 
descends  according  to  the  law  where  situated,  201. 
jurisdiction  as  to,  is  local,  207. 

courts  cannot  confer  title  to,  nor  decree  sale  of,  in  a  different  State, 
207. 

the  same  rule  applies  to  U.  S.  courts,  207. 
administrator  cannot  convey,  if  situated  in  another  State,  208,  212. 
title  to,  passes  only  by  lex  loci  rei  sitcB,  208. 
instruments  conveying  must  conform  to  law  of  situs,  208,  209. 

otherwise  not  notice,  209. 
foreign  acknowledgments,  210,  211. 
wills  of,  must  conform  to  law  of  situs,  210. 


INDEX.  393 

REAL  PROPERTY  —  Continued. 

some  States  allow  instrumeuts  conveying,  to  conform  to  place  of 

execution,  210. 
executory  contracts  for  the  purchase  of,  governed  by  what  law,  211. 
powers  to  take  acknowledgments  is  local,  211. 

courts  of  a  State  may  act  upon  person  of  the  owner,  if  property  is 
situated  beyond,  211. 

in  such  case  the  court  does  not  convey,  212. 
its  action  is  against  the  person  only,  212. 
U.  S.  courts  act  where  property  lies  in  two  States,  212. 
such  personal  order  entitled  to  full  faith  and  credit  in  other 
States,  213. 
State  owning,  in  another  State,  213. 

not  ditferent  from  private  ownership,  213. 
government  lands,  213. 

See  Government  Lands. 
power  of  foreign  corporation  to  hold,  290. 
REBELLIOUS  STATES, 

cannot  impair  the  obligation  of  contracts,  76. 
RECEIVERS, 

have  no  extra  territorial  authority,  295. 

powers  are  co-extensive  with  the  courts  making  the  appointment,  295. 

■whether,  may  sue  in  other  States,  29o,  297. 

See,  also,  Hurd  v.  City  of  Elizabeth,  8  Cent.  Law  Jour.  493. 

(This  case  was  reported  too  late  to  be  placed  in  the  text.) 

if  appointed  by  U.  S.  court,  State  court  cannot  control,  nor  the  effects, 

290. 
not  suable  in  court  other  than  one  appointing,  296. 
funds  in  hands  of,  not  subject  to  levy  by  other  court,  297,  298. 
suits  by,  to  enforce  liens  on  property  in  other  States,  297. 
RECORDS, 

of  judgments,  competency  as  evidence,  98. 
presumption  of  regularity  of,  98. 
See  Judgments. 
RELATIVE  POWERS, 

belong  to  the  States,  under  the  constitution,  16. 
what  included  under,  16. 
what  judicial  powers,  16,  17. 
RELEASE, 

may  be  pleaded  to  a  suit  on  a  judgment  of  another  State,  106. 
REMEDY, 

what  law  governs  the,  45-50. 

•without  impairing  the  obligation  of  contracts,  may  be  changed,  76. 
in  suit  under  a  foreign  assignment,  is  governed  by  the  lex  fori,  139. 
foreign,  are  not  enforced,  108. 

See  Lex  Fori 
REMOVAL  OF  CAUSES, 

who  are  citizens  under  act  governing,  190. 

State's  laws  requiring  corporations  to  dispense  with,  are  void,  287, 
354-356. 


394   .  INDEX. 

REMOVAL  OF  CAV8ES  —  Continued. 

State  laws  requiring  corporations,  etc.  —  Continued. 

but  Slate  may  revoke  license  of,  if  cause  is  removed,  288. 
for  causes  arising  under  the  authority  of  the  United  States,  852. 
under  act  of  Congress  of  March  3,  1875,  353. 
removal,  how  effected,  353. 
when  title  to  laud  is  concerned,  353. 
right  to,  cannot  be  limited  or  bargained  away,  854-356. 
necessary  citizenship,  how  disputed,  357. 

colorable  change  of  residence,  357. 
bona  fide  change  of,  357. 
citizenship,  how  stated  by  corporation,  857. 

of  real  party  alone  to  be  considered,  358. 

joinder  of  nominal  parties  has  no  effect,  358. 
right  to,  must  be  brought  within  the  statute,  358. 
corporate  residence,  358. 
U.  S.  court  judge  of  cause  of,  359. 
citizenship  has  reference  to  time  of  commencement  of  suit,  859. 

must  be  personal,  359. 
if  State  court  refuses  to  allow,  359,  860. 
by  national  corporations,  360. 
REPORTS, 

used  to  prove  unwritten  law,  121. 

See  Evidence. 
RESIDENCE. 

of  parties  to  a  divorce,  179,  180,  181. 
V  want  of,  in  divorce,  open  to  inquiry,  182. 
definition  of,  186. 
whether  person  can  have  two  residences,  186. 

may  have  a  domicile  and  a  different  residence,  186. 
difference  between  residence  and  domicile,  187. 
See  Domicile. 
REVERSAL  OF  JUDGMENT, 

consequence  of  payment  of  a  suit  on,  after,  89. 
statute  of  limitations  runs  from  the  date  of,  89. 
REVOCATION, 

Slate  may  revoke   permission   given  to  foreign  corporation  to  do 
business,  287. 

may  revoke  license  of,  for  removing  cause  to  U.  S.  couri,  t'i\s 
RIVERS.    See  Boundary  Rivers  ;  Navigable  Rivers. 
RULES  OF  CONSTRUCTION.    See  Construction. 
RULES  OF  EVIDENCE.    See  Evidence. 
RULES  OF  PROPERTY  AND  RIGHT, 

the  same  in  State  and  Federal  courts,  84.  85. 
when  not,  85,  86. 

blind  conformity  to  Slate  rules  not  required,  86. 
application  of  this  rule,  86. 
See  Decisions;  Construction. 


INDEX.  395 


s. 

SALE, 

of  personal  property,  governed  by  what  law,  194,  195,  196. 

when  it  violates  law  of  the  place  where  the  property  is,  197. 
when  the  property  has  a  fixed  locality,  197. 
sales  of,  valid  wliere  made,  valid  elsewhere,  197,  199. 
sales  of,  invalid  for  illegal  intent,  198,  199. 
when  there  is  an  intent  to  evade  the  laws  of  another  State  in 
selling,  198. 
See  Personal  Property;  Real  Property. 
SATISFACTION, 

of  part  of  judgment,  suit  brought  for  the  unpaid  part,  100. 
SCHOOLS, 

to  be  entitled  to  benefit  of,  what  residence  is  necessary,  189. 
SEALS, 

what  law  governs  as  to  the  necessity  of,  24,  25. 
concerning  the  kind  of  remedy,  25. 
SECURITY, 

when  it  consists  of  real  estate  and  is  situated  in  another  State  than 
the  contract,  47. 
SERVICE, 

on  non-resident  witness,  26. 

on  member  of  jjartnership  as  against  a  non-resident  member,  27. 

in  the  absence  of,  personal  judgment  cannot  be  rendered,  101. 

want  of,  must  be  pleaded  to  avail  against  judgment,  103. 

made  in  a  difterent  State,  126. 

on  garnishee,  out  of  the  State,  129,  130. 

See  Corporations;  Judgments;  Non-Residents. 
SEVERAL  STATES, 

contract  having  reference  to,  how  governed,  48,  49,  50. 
of  common  carriers,  59. 
SHIFTS, 

resorted  to  in  making  contracts,  what  law  governs,  49. 
See  Fraud. 
SITUS, 

of  personal  property,  194. 

of  real  property,  207,  209. 

See  Personal  Property,  and  Real  Property. 
SLANDER, 

actions  for,  are  transitory,  144. 

See  Torts. 
SLOUGHS, 

subject  to  State  control,  321. 
SOVEREIGNTY, 

of  States.  9,  11. 

of  the  national  government,  9,  11. 
STATE, 

sovereignty  of,  9, 11. 

owning  land  in  another  State,  213. 


396  INDEX. 

STATE  —  Continued. 

stockholder  In  a  corporation  which  Is  sued,  284. 
STATE  BOUNDARY  RIVERS.    See  Boundary  liivERS. 
STATE  COURTS, 

cannot  punish  offenses  against  United  States,  215.  244. 
See  Boundary  Rivers ;  Concurrent  Jurisdiction;  Criminal  Jurisdiction; 

Jurisdiction. 
STATUTE  OP  FRAUDS. 

what  law  is  applicable  to,  60. 
STATUTE  OF  LIMITATIONS, 

when  runs  if  judgment  is  reversed,  89. 

may  be  pleaded  to  suit  on  jud/;ment  of  another  State,  106, 107, 171, 

172. 
goes  to  the  remedy,  171. 
governed  by  the  lex  fori,  171,  172. 

runs  against  original  as  well  as  actions  on  judgments,  171. 
governs  U.  S.  courts  sitting  within  the  State,  171. 
State  may  limit  time  for  bringing  actions  on  judgments  of  other 

States,  173. 
runs  against  judgments  from  their  date,  173. 
if  it  amounts  to  a  total  denial  of  the  remedy,  is  void,  173» 
does  not  affect  suits  of  State  or  United  States,  174. 
must  operate  prospectively,  174. 

whether  if  action  is  barred  in  original  State  will  be  a  bar,  174,  175. 
requisite  of  plea  to  constitute  the  same  a  bar  in  other  State, 
175. 
whether  corporation  of  another  State  can  plead  the  statute,  175, 176. 
STATUTORY  ACTIONS, 
are  local,  145. 
only  enforced  in  the  State  where  enacted,  148. 

not  outside  of  the  State,  148. 
penalty  for  usury,  148, 165, 166. 
penal  statutes  and  punishments  always  local,  149. 
not  enforced  against  acts  committed  in  another  State,  149. 
penalty  for  bastardy,  150-154. 

See  Bastardy. 
difference  between  and  common  law  transitory  actions,  154. 
for  the  death  of  a  person,  155. 
are  not  transitory.  155. 
are  of  a  penal  nature,  156. 
what  included  under,  156. 
were  unknown  to  the  common  law,  156,  157. 
the  purport  and  terms  of,  157. 
to  whom  such  actions  are  given,  157. 

rules  of  different  States,  157,  158. 
the  remedy  is  local,  158-163. 
not  enforced  through  comity,  160. 
the  right  of  action  is  not  a  right  of  property,  163. 
if  the  laws  of  the  places  are  the  same  yet  will  not  be  enforced, 
163. 


INDEX.  397 

STATUTORY  ACTlOliiS  —  Continued. 

For  the  death  of  a  person  —  Continued. 

when  caused  by  a  company  incorporated  in  both  States,  163. 

or  doing  business  in  both,  163. 
when  the  remedy  is  by  indictment,  164. 
it  is  local,  164, 165. 
STATUTORY  OBLIGATIONS, 
are  local,  54,  55. 

cannot  be  sued  on  in  otlier  States,  54,  55,  56. 
official  bonds  are  local,  55. 

given  in  Federal  proceedings  where  may  be  sued  on,  56,  57. 
attacliment  bonds  given  to  U.  S.  Marshal,  where  may  be  sued  on,  57. 
STOCKHOLDER, 

State  being,  in  a  corporation  which  is  being  sued,  284. 
inter-State  suit  against  to  enforce  liability  of,  290. 
cannot  be  enforced,  290,  291. 
liability  being  statutory  is  local,  291. 
See  Subscription. 
STOPPAGE  IN  TRANSITU, 

the  law  of,  in  ijitei'State  assignments,  73. 
as  against  intervening  purchasers,  73. 
how  enforced,  73,  74. 

by  replevin,  74. 
carrier  should  interplead,  74,  75. 
SUBSCRIPTION, 

to  capital  stock,  203. 

governed  by  law  of  company's  residence,  203. 
See  Stockholder. 


SUITS, 


between  two  or  more  States,  20. 

who  has  jurisdiction  of,  20. 

State  must  be  a  party  on  the  record,  20,  note, 
between  a  State  and  a  citizen  of  another,  21. 

whether  possible,  21. 
right  to  bring,  a  constitutional  right,  22. 
allowed  also  by  comity,  22. 

See  Corporations,  and  Removal  of  Causes. 


TAXATION, 

of  bonds  held  by  non-residents,  203. 

visible  and  tangible  property,  where  taxable,  304,  305,  206. 

if  in  transit,  205. 

if  only  temporarily  within  the  State,  205. 
intangible  property  taxable  at  the  owner's  residence,  305. 

debts,  205. 
of  bonds  of  corporations  existing  in  two  or  more  States,  375. 
See  Commerce. 


398  INDEX. 

TAXATION  —  Continued. 
national  banks — 

States  cannot  tax  stock  of,  823. 
lands  of,  may  be  taxed,  322. 
shares  of  may  be  taxed,  322. 

and  collected  through  the  bank,  323. 
must  be  uniform  with  that  on  local  bank  shares,  323. 
national  bonds — 

States  cannot  tax,  324. 
of  permanent  erections  in  boundary  rivers,  845. 
TERRITORIAL  GOVERNMENT.    See  Government. 
TERRITORIAL  STATE  BOUNDARY.    See  Boundary  Rivers. 
TIDE  WATERS, 

right  of  common  in,  334. 

is  in  the  people  of  a  State,  834,  835. 
TORT. 

damages  in,  governed  by  what  law,  58. 

trespass  guare  elausumf regit  is  local,  140. 

committed  in  one  State  against  land  in  another,  140,  242,  243. 

transitory  actions  will  lie  in  otlier  States,  141. 

what  are  transitory,  141. 
analogous  to  actions  ex  contractu,  141. 
common  law  personal,  142. 

actions  for,  lie  in  other  States,  142,  144. 
trespass  on  the  case  lies  in  any  State,  143. 

how,  in  U.  S.  courts,  143,  144. 
slander,  144. 

malicious  prosecution,  144. 
statutory  actions  for,  are  local,  145. 

committed  in  one  State  against  person  or  property  in  another,  242,  243. 
See  Maritime  Torts. 
TRANSITORY  ACTIONS, 
what  are,  141. 

See  Torts;  Contracts. 
TREASON, 

committed  in  another  State,  242. 
TRESPASS  ON  THE  CASE, 
lies  in  any  State,  143. 
how,;  in  U.  S.  courts,  143, 144. 
TRESPASS  QUARE  CLAUSUM  FREGIT, 

is  local,  140. 
TRUST  FUNDS, 

will  be  followed  into  other  States,  297. 

and  there  applied,  299. 
whether  trust  has  been  abused,  depends  upon  the  law  local  to  the 
trust,  300. 


INDEX.  399 


u. 

UNITED  STATES, 

judicial  power  of,  extends  to  what,  17. 
UNITED  STATES   COURTS, 

paramount  authority  of,  9,  10,  11,  15. 

jurisdiction  of,  over  executors  and  administrators,  41,  362,  270,  271. 

have  jurisdiction  of  foreign  bills  of  exchange,  66,  67. 

actions  in,  on  judgments  of  State  courts,  94. 

take  notice  of  State  laws,  121,  210. 

follow  State  statutes  of  limitations,  171. 

actions  in,  on  judgments  of  State  courts,  94. 

cannot  punish  olienses  against  the  States,  215,  245. 
See  Circuit  Courts  op  United  States  ;  Construction  ;  Criminal  Juris- 
diction ;  Injunctions  ;  Rules  op  Property  and  Right. 
UNITY, 

of  State  and  federal  governments,  9,  10,  11. 
UNIVERSAL  LAW, 

defined,  6. 

binding  force  of,  6,  7, 167. 
UNWRITTEN  LAW, 

how  proven,  121 
USURY, 

governed  by  what  law,  65,  80-83. 

See  Interest. 

when,  by  the  lex  loci  contractus,  81,  82. 

when,  by  the  lex  loci  solutionis,  81. 

forfeitures  for,  bear  relation  to  the  remedy,  83. 

statutory  actions  for,  are  local,  148,  165,  166. 
penalties  are  local,  148,  165,  166. 
See  Receivers. 


V. 

VALIDITY, 

of  contracts,  45-50. 

marriages,  178. 
divorce,  179,  182. 

See  Judgments. 
VESSELS, 

mortgages  of,  not  subject  to  State  law,  68. 
VIOLATION, 

contracts  made  in,  of  laws  of  other  States,  58. 
the  illegal  intent,  58. 

See  Contracts. 
VOID  CONTRACTS, 

void  everywhere,  47,  48,  49. 
VOLUNTARY  ASSIGNMENTS    See  Assignments  ;  Insolvency. 


I 


400  INDEX. 


w. 

WARDS.    See  Guardians. 
WAREHOUSE. 

subject  to  State  control,  821. 
WAREHOUSE  RECEIPTS, 

transferred  In  States  other  than  where  property  is  stored,  73. 
what  law  governs,  72. 
WITNESS, 

non-resident,  service  on,  26. 
WILLS, 

of  real  property,  210. 

must  conform  to  law  of  the  situs,  210,  266. 
probate  of,  how  far  binding  in  other  States,  264. 
federal  courts  cannot  take  proof  of,  264. 
are  bound  by  State  courts,  265. 
when  probated  in  other  States,  are  evidence,  265. 
devising  foreign  lands  to  minors,  how  administered,  265. 
to  pass  land  in  another  State,  266. 

See  Executors  and  Administrators. 


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